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COPIED BY rERMiSflON FROM A PAINTING BY HENRY INMAN, THE FR3PERTY OF THE lAW ASSO. OF FHILA. 




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THE LIFE 



OF 



John Marshall 



BY 

HENRY FLANDERS 

of tHe PHiladelpHia Bar 



A.\»thor of "An £^xposition of the Con^'iio ion of the UnitecL 

States," "The Lives and T 'S of the Chief 

Justices of the Unit a states, " etc. 



PHILADELPHIA 

T. & J. ^W. JOHNSON & CO. 

1005 



Publishers' Note. 

The constantly increasing interest in the life and 
services of Marshall make it appropriate at this time 
to issue in a single volume the excellent work by 
Mr. Flanders. 

Originally issued in the author's " Lives and 
Times of the Chief Justices of the United States," 
Flanders' " Life of Marshall " has been generally 
acknowledged as one of the most comprehensive 
and authentic written, and has been variously re- 
ferred to and quoted. 

The publishers have thus been induced to think 
that, revised and reissued in separate form, this 
standard Life of Marshall would be a convenience 
to the reading public. Hence the present volume. 

As a frontispiece is given an engraving repro- 
ducing the celebrated Inman portrait, which is gen- 
erally regarded as the most satisfactory. It shows 
the Chief Justice in the later years of his life, and 
the original portrait, painted at the request of the 
Law Association of Philadelphia, may be seen in 
the library of the Association. 



CONTENTS 

LIFE OF JOHN MARSHALL, 



CHAPTEE I 

His Ancestry — His father, Thomas Marshall — The Chief Justice's affec- 
tion for — Marriage of Thomas Marshall 1-3 

CHAPTER II. 

His Birth and Education — Taught by his Father — Imbibes a love of litera- 
ture — His early life — Goes to reside with the Rev. Mr. Campbell — 
Absent a year — Studies Latin — Returns Home and continues his 
studies with the Rev. Mr. Thompson — Extent of his Classical tuition 
— His father superintends his English education — Effect of Scenery 
upon — Style of living — Fond of athletic Exercises — Begins the study 
of the Law , 4_7 

CHAPTER III. 

1775—1780. 

His Military services — Difficulties with England — Political sentiments of 
young Marshall — Appointed Lieutenant of a Militia company — Pro- 
ceedings of Lord Dunmore — Effect of — Description of young Mar- 
shall — Minnte-men — Their appearance — Lord Dunmore's apprehen- 
sion of — He flies on board a Man-of-war — Proceedings of — Action at 
the Great Bridge — Marshall engaged in — Appointed a Lieutenant in 
11th Virginia Regiment — Sent to the North — Joins the Army at 
Morristown — Condition of the Army — Marshall appointed Captain — 
Gloomy period of the war — His services— The Battle of Brandywine — 
Of Germantown — Valley Forge — Marshall's messmates — Their suffer- 
ings — His good temper — Acts as Deputy Judge Advocate— Acquaint- 
ance with Hamilton — Evacuation of Philadelphia — Battle of Mon- 
mouth — Assault of Stony Point — Powle's Hook — His return to Vir- 
ginia — Invasion of that State — Resigns his Commission 8-22 

vii 



viii CONTENTS. 

CHAPTER IV. 

1781 — 1799 

His Practice at the Bar — Resumes his Legal studies — Journey to Phila- 
delphia on foot — Refused admittance into a Public-house — Begins 
his Practice in Fauquier — His legal acquirements — His success — To 
what owing — His dress and personal appearance — Anecdote — His 
qualities as a Lawyer and Advocate — Business of the Courts — Charac- 
ter of — Case of Ware vs. Hylton — The Countess of Huntington — Pat- 
rick Henry — Anecdote — Marshall's argument — Alexander Campbell 
— The Duke de Liancourt — His description of Marshall — Political 
principles of Marshall — " Propensity to Indolence" 23^1 

CHAPTER V. 

1782 — 1788. 

Bf ember of the Virginia Legislature — His devotion to a Union of the States 
— His endeavors to promote — Vindication of the Claims of the Army 
— ^His marriage — Removes to Richmond — Wishes to withdraw from 
public life — Prevented from doing so — Affairs of the United States 
—His Opinions as to increasing the Federal authority — Hailed the call 
-of the Federal Convention — Approves the Federal Constitution, ...42-47 

CHAPTER VI. 

1788. 

. Blembcr of the Virginia Convention — His personal popularity — Debates 
in the Convention — Conspicuous Members — Marshall as a Debater — 
Contrast between him and Patrick Henry — His Speeches — Patrick 
Henry's Eulogium — Adoption of the Constitution 48-68 

CHAPTER VII. 

1788 — 1797. 

Member of the Virginia Legislature — State of Parties in Virginia — Mar- 
shall's vindication of Washington's Administration — Retires from the 
Legislature — His practice in the Courts — Defends Domestic Policy of 
Washington's Administration — He is Denounced by the Opposition — 
Again elected a Member of the Legislature — Defends Jay's Treaty — 
Celebrity of his Speech — His visit to Philadelphia — Meets Ames, 
Cabot, and other Federalists — Offered the post of Attorney-General — 
Offered the Mission to France — Debates in the Virginia Legisla- 
ture 69-75 

CHAPTER VIII. 

1797 — 1798. 

iJnvoy tc France — Attentions paid to him on his Departure from Rick 

mond — Embarks at Philadelphia — The President's description or— \ > 

Arrival at Paris — Interview with M. Talleyrand — Difficulties inters ' 



CONTENTS. ix 

pose — TJnofBcial Negotiations — Propositions of Talleyrand's agents — 
Refusal of the Directory to see the Envoys — Demand of a loan and a 
douceur — Refusal of the Envoys — Incidents of their stay in Paris- 
Address a Letter to Talleyrand — His Reply — Answer of the Envoys 
They determine to return Home — Gerry is induced to stay — Pass- 
ports refused them — Marshall's interview with Talleyrand — Passports 
finally sent them — They leave Paris — Republication of their Dis- 
patches in England — Talleyrand's observations on — Marshall's 
arrival in New York — His Reception — JeflFerson's account of his 
Entry into Philadelphia — A public Dinner is given to him — Returns 
to Virginia — Resumes his Practice at the Bar 76-105 

CHAPTER IX. 

1799 — 1800. 

Member of Congress — Offered an Appointment on the Bench of the 
Supreme Court — Declines it — Visits General Washington — Anecdote 
— Is induced to become a Candidate for Congress — Is assailed by the 
Opposing Party — Calumnies against him — Patrick Henry's Letter 
respecting — Marshall's letter to Wash^ington — His Election — State of 
Parties in Congress — Wolcott's description of Marshall — Lawyers 
considered as Statesmen — Answer to the President's Speech — Death 
of Washington — Marshall's Eulogy upon — Approves of the 3d Mis- 
sion to Paris — Votes in favor of a Repeal of the Sedition Act — His 
Speech in the case of Jonathan Robbins — Resigns his seat 106-121 

CHAPTER X. 

1800 — 1801. 

Secretary of State — The Cabinet of President Adams — Members of de- 
scribed — Resignation of McHenry — Pickering dismissed — Marshall's 
appointment as Secretary of State — Importance of his services — His 
oflBcial Correspondence — His letter respecting Burr and Jeflerson, 122-129 

CHAPTER XI. 

1801 — 1836. 

Chief Justice of the United States — His personal appearance — Described 
by William Wirt, Judge Story, and Daniel Webster — His qualities as 
a Judge — The Bar of the Supreme Court — Dexter and Webster — Hoff- 
man, WellsT^Ogden, Emmett, and Oakley — Tilghmao, Rawle, Inger- 
soU, Duponceau, Hopkinson, Sergeant, and Binney — Luther Martin, 
Pinkney, and Harper — Wickham, Leigh, Nicholas, and Wirt — Mar- 
shall's opinions as to the Constitution — His principles of Construction 
— Aaron Burr — His schemes — His arrest — Case of Swartwout and 
Bollman — Trial of Burr — Judicial opinions — Marshall's character as 
a Judge — Character of his mind — The veneration and affection felt 
towards him by the Bar — Anecdote — Miss Martineau's description 
of a Scene in the Supreme Court 130-196 



X C N T 7. N T S . 

CHAPTER XII 

1800 — 1806. 

His Biography of Washington — Price asked for the Work — Price agreed 
to be paid for — The Republicans fear he will give a Party bias to hia 
work — Jefferson's letter to Barlow respecting — Candor of the work — 
Letters of Mason L. Weems — Delay in the Publication of the work 
— Clamors of the Subscribers — Does not wish his name to appear in 
the title page — Yields his Reluctance to the wishes of the Publisher — 
His Modesty — Letters to his Publisher — Wishes the Criticisms upon 
his work sent to him — Major Jackson's criticism — Marshall's morti- 
fication at the reception the first volume met with — Its character — 
His description of Pitt — His Letters — His candor — Reply to Jeffer- 
son's strictures — Criticism upon Life of Washington — Delineation of 
Washington 197-221 

CHAPTER XIII. 

1829. 

Virginia State Convention — Revision of the Constitution — Members of 
the Convention — the basis of Representation — Speech of the Chief 
Justice respecting — John Randolph's description of — Opinions of the 
Chief Justice respecting the Judiciary — Anecdote — Would give the 
Senate power to alter a Money Bill — Opposed to Disfranchising per- 
sons concerned in a Duel — Deference and respect with which h© 
was treated in the Convention — Assents to the Constitution as 
amended 222—237 

CHAPTER XIV. 

1829 — 1835. 

ronclusion — The residence of the Chief Justice — The Ambler family- 
Marriage of the daughters — His farms — Fond of Social pleasures — 
The Barbacue Club — Description of — The Chief Justice punctual in 
his attendance at — Anecdote of — His yearly visits to Fauquier — 
Anecdote — Bishop Meade's account of — His dress — An early riser — 
Goes to Market — Anecdote — Holds the Circuit Courts for North 
Carolina and Virginia — His style of travelling — His defence of 
Christianity — His genial disposition — Fond of the young — Anecdote 
— Generous and just — Instance of — Opinions with regard to Slavery 
— His politics — Views with regard to Secession and Nullification — 
Fond of Books — Reads Novels — Poetry — His health — Operation upon 
by Dr. Physick — His self-possession — Death of his wife — His atten- 
tion to — First meeting with his wife — Ardor of his character — Amount 
of his fortune at the time of his marriage — His Tribute to the 
Memory of his wife — Attends the Theatre to hear Miss Fanny 
Kemble — Is cheered — Effect of Miss Kemble's acting upon — Miss 
Martineau's description of the Chief Justice — Murray's description 
of — His unpretending manner — His conversation — Anecdote — His 
mind continues firm to the last — His health declines — ^Visits Phila- 
delphia to seek medical aid — His death — Calls forth tributes of affec- 
tion and respect — Town-meeting at Philadelphia — Reception of his 
Remains at Richmond — Funeral services — His statue — His religion 
—His virtues — Conclusion 238-272 



THE 



LIPE OF JOHN MARSHALL 



CHAPTER I. 

HIS ANCESTRY. 

John Marshall, the grandfather of Chief Justice 
Marshall;, was a native of Wales, and emigrated to 
America about the year 1730. He settled in West- 
moreland County, which, not inaptly, has been termed 
* the Athens of Virginia' — Washington, Monroe, and 
the Lees having been born there. Here he married 
Elizabeth Markham, a native of England, who bore 
him four sons and five daughters. 

John Marshall was a planter, but does not appear to 
have been a very prosperous one. His estate, called 
' Forest,' though consisting of several hundred acres, 
was comparatively unproductive. It was inherited by 
his eldest son, Thomas, who subsequently removed to 
Fauquier County. He settled at a place called Ger- 
mantown, and resided there for several years. 

Thomas Marshall and Washington were born in the 
same neighborhood, were companions in boyhood, and 
friends ever after. Both became practical surveyors, 
and in the pursuits of a common profession, and after- 

1 



Z LIFE OF JOHN MARSHALL. 

wards, in the service of a common country, their friend- 
ship and association were preserved. On the outbreak 
of the Revolution, Thomas Marshall was placed in 
command of the third Virginia regiment, serving as 
Continental troops, and in that capacity performed 
arduous and meritorious service. He was at Trenton 
and Brandywine, and in the latter battle bore a con- 
spicuous part. 

The natural abilities of Thomas Marshall were un- 
commonly vigorous, and were improved, not only by 
observation and reflection, but by extensive acquaint- 
ance with books. Though his means were limited, 
and his early advantages of education slight, he had 
purchased and made himself familiar with most of the 
standard works of English literature. By his neigh- 
bors and acquaintance he was held in the highest esti- 
mation for sound sense, and general ability. By his 
children he was equally beloved and admired. ^ I have 
myself,' says Judge Story, ' often heard the Chief Jus- 
tice speak of him in terms of the deepest aflection and 
reverence. I do not here refer to his public remarks ; 
but to his private and familiar conversations with me, 
when there was no other listener. Indeed, he never 
named his father, on these occasions, without dwell- 
ing on his character with a fond and winning enthu- 
siasm. It was a theme on which he broke out with 
a spontaneous eloquence; and, in the spirit of the 
most persuasive confidence, he would delight to expa- 
tiate upon his virtues and talents. " My father," (would 
he say, with kindled feelings and emphasis,) "my 
father was a far abler man than any of his sons. To 
him I owe the solid foundation of all my own success 
in life."" 

' Discourse upon the Life, &c., of John Marshall. 



HIS ANCESTRY. 3 

About the time of his removal from Westmoreland 
to Fauquier County, Thomas Marshall married Miss 
Mary Keith, respecting whom we have been able to 
obtain only one or two trifling particulars. If, how- 
ever, the character and talents of her children may be 
taken as the reflection of her own, she must have 
possessed great merit and understanding. 



CHAPTER II 

1756 — 1775. 

HIS BIRTH AND EDUCATION. 

John Marshall, the eldest of fifteen children, was 
the son of Thomas and Mary Marshall, and born at a 
locality called Germantown, in Fauquier County, Vir- 
ginia, on the 24th day of September, 1755. When he 
was quite young, the family moved to Goose's Creek, 
under Manassa's Gap, near the Blue Ridge, and still 
later to Oak Hill, where they were living at the com- 
mencement of the Revolution.^ His father, a planter 
and surveyor like his friend Colonel Washington, led 
a very retired life, owing no doubt to the narrowness 
of his fortune, and the studiousness of his disposition. 
The region of country, too, in which he lived, was very 
sparsely settled ; there were no schools in the neigh- 
borhood, and the duty of instructing his children 
chiefly devolved on him. How cheerfully and faith- 
fully he performed it, the remark of the Chief Justice, 
which we have already quoted, that to his father he 
owed the solid foundation of all his success in life, is 
an ample testimony. 

To him he was indebted for that love of literature, 
which continued fresh and warm down to the very 
closing scenes of his life. ^ At the age of twelve [he] 

' Howe's Virginia Historical Collections, page 262. 



HIS BIRTH AND EDUCATION. 5 

had transcribed the whole of Pope's Essay on Man, 
and some of his moral essays, and had committed to 
memory many of the most interesting passages of that 
distinguished poet. The love of poetry, thus awakened 
in his warm and vigorous mind, soon exerted a com- 
manding influence over it. He became enamored of 
the classical writers of the old English school, of Mil- 
ton, and Shakspeare, and Dryden, and Pope; and was 
instructed by their solid sense, and beautiful imagery. 
In the enthusiasm of youth, he often indulged himself 
in poetical compositions, and freely gave up his leisure 
hours to those dreamings with the muses, which (say 
what we may) constitute with many the purest source 
of plea-sure in the gayer scenes of life, and the sweetest 
consolation in the hours of adversity.' ^ 

In study, in healthful sports, and amidst the genial 
and virtuous influence of his home, the early boyhood 
of John Marshall passed happily away. He was par- 
ticularly fortunate in being reared among numerous 
brothers and sisters. It has been often remarked that 
children growing up, under such circumstances, are 
the more apt, on that account, to make good men and 
women. They constitute a little community among 
themselves, and learn betimes that respect for social 
rights and duties, that mutual accommodation and for- 
bearance, which fit them for useful and pleasant asso- 
ciation in those corporate communities in which their 
lives are to be passed. 

At fourteen, he was sent to Westmoreland, a hun- 
dred miles away, where he commenced the study of 
Latin. His teacher was the Rev. Mr. Campbell, & 
very respectable clergyman, with whom he remained 
a year. One of his fellow-students, a lad of far infe- 

' Discourse on the Life, &c., of John Marshall, by Joaoph Story. 



6 LIFE OF JOHN MARSHALL. 

rior capacity, but who afterwards became President of 
the United States, was James Monroe. On his return 
home, which was about the time of his father's remo- 
val to Oak Hill, young Marshall continued the study 
of Latin another year, under the Rev. Mr. Thompson, 
a Scotch clergyman, who had just settled in the parish, 
and resided in his father's family. This was all the 
aid he ever received from teachers in his study of the 
classics. With Mr. Thompson he had begun the read- 
ing of Horace and Livy ; but how far his own unas- 
sisted efforts subsequently carried him, I am unable to 
say. As his stock of classical lore, however, was never 
very extensive, we may, perhaps, presume that, in the 
absence of classical tuition, he turned with more ardor 
to the study of English literature. Here he had the 
assistance and sympathy of his father, who was not 
only the kind and considerate parent, but the friend 
and companion of his son. 'My father,' thus he wrote 
long after, 'superintended the English part of my 
education, and to his care I am indebted for any thing 
valuable which I may have acquired in my youth. 
He was my only intelligent companion, and was both 
a watchful parent, and an affectionate, instructive 
friend. The young men within my reach were entirely 
uncultivated ; and the time passed with them was de- 
voted to hardy, athletic exercises.' 

But not to study alone, nor to the companionship 
of such a father, is the eminence of John Marshall to 
be solely attributed. In addition to the native vigor 
of his faculties, much was owing to the circumstances 
amid which he grew up. In a thinly populated region 
of country, he had, necessarily, but little society^ his 
mind was thrown upon itself, and his lonely medita- 
tions created and confirmed habits of thought and re- 
flection. The wild and mountainous scenery, too, that 



HIS BIRTH AND EDUCATION. 7 

surrounded him, could not fail to affect a mind like 
his; reverent, and impressible to the varied charms of 
nature. The simple style of living, too, then common 
in that part of Virginia, the easy and friendly footing 
on which all social intercourse was conducted, were not 
lost on Marshall. Both were afterwards perceptible 
in his characteristic simplicity, and ready sympathy 
with humanity, in all its relations, without regard to 
rank or fortune, which, with his other qualities, so 
endeared him to his countrymen. *He ever recurred 
with fondness to that primitive mode of life, when he 
partook, with a keen relish, balm tea and mush, and 
when the females used thorns for pins.'' He was fond 
of athletic exercises, and, naturally enough in a region 
abounding in game, of field sports also. These tastes 
and habits gave him a firm, robust constitution, and, 
even in his years, he exhibited the vigor and fresh- 
ness of youth. 

Having selected the law as his future profession, he 
began the study of it about the time he was entering 
on the eighteenth year of his age. He had not, how- 
ever, made much progress in the perusal of Black- 
stone's Commentaries, before the threatening aspect 
of public afiiiirs withdrew and concentrated his ener- 
gies upon very difierent pursuits. In the next chapter, 
we shall view the future Chief Justice as a soldier. 

' Howe's Virginia Historical Collections, page 263. 



CHAPTER III. 

1775-1780 

HIS MILITARY SERVICES. 

Times of Revolution are necessarily times of great 
intellectual activity. All minds are alert, anxious, and 
inquiring. Whether the cause of Revolution be politi- 
cal or religious, discussion and investigation are pre- 
supposed. Mankind are not apt to change existing 
establishments without very thorough conviction of 
the necessity of such change. And that conviction 
is not wrought in a day. Fixed habits, inherited 
attachments, interest in the past, and hopes in the 
future, all plead against innovation. When, there- 
fore, all the various considerations that urge men to 
Bubmit to the present order of things are overpowered 
by the weight of opposing considerations, it may 
readily be supposed that, in the conflict that has taken 
place, the minds of men have been thoroughly aroused, 
abstracted from ordinary pursuits, and fixed on objects 
of a larger and more comprehensive character. 

It was in the midst of the fermentation and excite- 
ment immediately preceding actual hostilities between 
Great Britain and her American colonies, that John 
Marshall received his first lessons in practical politics^- 
His father was a staunch Whig, who believed that the 
pretensions of Great Britain, if submitted to, would 



HIS MILITARY SERVICES. 9 

result in the political enslavement of himself and pos- 
terity. The son could hardly fail to catch the tone 
and partake the sentiments of his father. But, what- 
ever his natural bias, yet not blindly, nor with unrea- 
soning facility, did he espouse the prevailing opinions. 
He investigated the grounds of the controversy. The 
various political essays of the day he read attentively. 
Full of youthful ardor, apd looking forward to the 
time when discussion would give way to arms, he en- 
rolled himself in a company of volunteers, in order to 
learn something of the rudiments of military science. 
In the spring of 1775 he was appointed Lieutenant in 
a militia company of the neighborhood, and, soon after, 
first Lieutenant in a company of minute-men. In this 
latter capacity, as we shall presently see, he was called 
into active service. 

On the 20th of April, Lord Dunmore, in consequence 
of the hostile attitude of the Virginians, had the powder 
in the magazine at Williamsburg removed on board 
a man-of-war. This proceeding produced a feeling of 
great exasperation throughout Virginia, and was in- 
creased by the threat of Dunmore that he would fire 
Williamsburg, and proclaim freedom to the slaves, if 
injury should befall himself, or the officers who had 
acted in the execution of his orders. It was in the 
midst of the prevailing excitement, when the whole 
body of the people were fully aroused, that news arrived 
of the action at Lexington. This startling intelligence 
increased the ferment. An appeal to arms and the 
God of Hosts seemed now to be inevitable. It is at 
this critical moment that we have our first view of 
John Marshall. It is now that we get our first dis- 
tinct impression of his youthful appearance. His com- 
pany had assembled, according to previous notice, 
about ten miles from his father's residence. A kins- 



10 LIFE OF JOHN MARSHALL. 

man and cotemporary, who was present at their place 
of meeting, has thns described him as he then and 
there appeared : — 

*It was in May, 1775. He was then a youth of 
nineteen. The muster-field was some twenty miles 
distant from the Court-house, and in a section of coun- 
try peopled by tillers of the earth. Rumors of the 
occurrences near Boston had circulated with the effect 
of alarm and agitation, but without the means of ascer- 
taining the truth, for not a newspaper was printed 
nearer than Williamsburg, nor was one taken within 
the bounds of the militia company, though large. The 
Captain had called the company together, and was ex- 
pected to attend, but did not. John Marshall had been 
appointed Lieutenant to it. His father had formerly 
commanded it. Soon after Lieutenant Marshall's ap- 
pearance on the ground, those who knew him clustered 
about him to greet him, others from curiosity and to 
hear the news. 

' He proceeded to inform the company that the Cap- 
tain would not be there, and that he had been ap- 
pointed Lieutenant instead of abetter; that he had 
come to meet them as fellow-soldiers, who were likely 
to be called on to defend their country, and their own 
rights and liberties, invaded by the British ; that 
there had been a battle at Lexington, in Massachu- 
setts, between the British and Americans, in which 
the Americans were victorious, but that more fight- 
ing was expected ; that soldiers were called for, and 
that it was time to brighten their fire-arms, and learn 
to use them in the field ; and that, if they would fall 
into a single line, he would show them the new 
manual exercise, for which purpose he had brought 
his gun, — bringing it up to his shoulder. The sergeants 



HIS MILITARY SERVICES. 11 

put the men in line, and their fugleman presented 
himself in front to the right. 

' His figure/ says his venerable kinsman, ' I have 
now before me. He was about six feet high, straight 
and rather slender, of dark complexion, showing little 
if any rosy red, yet good health, the outline of the face 
nearly a circle, and within that, eyes dark to black- 
ness, strong and penetrating, beaming with intelligence 
and good nature ; an upright forehead, rather low, was 
terminated in a horizontal line by a mass of raven- 
black hair of unusual thickness and strength ; the fea- 
tures of the face were in harmony with this outline, 
and the temples fully developed. The result of thi^ 
combination was interesting and very agreeable. The 
body and limbs indicated agility, rather than strength, 
in which, however, he was by no means deficient. He 
wore a purple or pale blue hunting shirt, and trowsers 
of the same material, fringed with white. A round 
black hat, mounted with tho buck's-tail for ;. cockade, 
crowned the figure and the man. He went through 
the manual exercise by word and motion, deliberately 
pronounced and performed, in the presence of the com- 
pany, before he required the men to imitate him ; and 
then proceeded to exercise them, with the most per- 
feet temper. Never did man possess a temper more 
happy, or, if otherwise, more subdued or better disci- 
plined. 

' After a few lessons, the company were dismissed, 
and informed that, if they wished to hear more about 
the war, and would form a circle around him, he 
would tell them what he understood about it. The 
circle was formed, and he addressed the company for 
something like an hour. I remember, for I was near 
him, that he spoke, at the close of his speech, of the 
minute battalion, about to be raised, and said he was 



12 LIFE OF JOHN MARSHALL. 

going into it, and expected to be joined by many of 
his hearers. He then challenged an acquaintance to 
a game of quoits, and they closed the day with foot- 
races and otlier athletic exercises, at which there was 
no betting. He had walked ten miles to the muster- 
field, and returned the same distance on foot to his 
father's house at Oak Hill, where he arrived a little 
afte** sunset.'* 

Thus and so was John Marshall, in the freshness of 
youth, and thus, in the main, did he continue through 
life. The same simplicity, naturalness, good nature, 
happy temperament, open, manly, and sincere disposi- 
tion, were at all times remarked, and secured to him 
the unaffected love of his countrymen. They could 
admire the exhibition of his pre-eminent talents, but 
qualities like these were needed to attract and fix the 
affection of their hearts. 

The occurrences to the northward, and the hostile 
attitude of parties at home, the liability and expecta- 
tion of being called into immediate service, induced 
the volunteers of Culpepper, Orange, and Fauquier 
Counties, to constitute themselves a regiment of 
minute men. This was, doubtless, the organization 
to which young Marshall referred, in his address to the 
militia, as about to be formed. They were, the first 
minute men raised in Virginia, and numbered about 
three hundred and fifty men. Lawrence Taliaferro 
was chosen their Colonel, Edward Stevens, Lieute- 
nant-Colonel, and Thomas Marshall, the father of the 
Chief Justice, Major. The future Chief Justice him- 
self received the appointment of first Lieutenant in 
one of the companies of this regiment. 

' Eulogy on John Marshall by Horace Binn«y, pp. 22-24. 



HIS MILITARY SERYICES. 13 

These were the citizen soldiery, who, John Ran- 
dolph said in the Senate of the United States, in one 
of his discursive speeches, 'were raised in a minute, 
armed in a minute, marched in a minute, fought in a 
minute, and vanquished in a minute.' Their appear- 
ance was calculated to strike terror into the hearts of 
an enemy. They were dressed in green hunting-shirts, 
* home-spun, home-woven, and home-made,' with the 
words, ' Liberty or Death' in large white letters, on 
their bosoms. * They wore in their hats buck-tails, 
and in their belts, tomahawks and scalping-knives. 
Their savage, warlike appearance, excited the terror 
of the inhabitants as the}^ marched through the coun- 
try to Williamsburg." Lord Dunmore told his troops 
before the action at the Great Bridge, which we shall 
presently describe, that if they fell into the hands of 
the shirt-men, they would be scalped ; an apprehen- 
sion, it is said, which induced several of them to pre- 
fer death to captivity. To the honor of the shirt-men, 
however, it should be observed, that they treated the 
British prisoners with great kindness — a kindness 
which was felt and gratefully acknowledged. 

Early in June, Lord Dunmore, apprehensive of his 
personal safety, fled on board a man-of-war. With 
the British shipping, off the coast of Virginia, at his 
command, he possessed the means of annoying the Vir- 
ginians, without being able to strike any very effective 
blow. Through the summer and autumn of 1775, 
both parties were kept upon the alert, but nothing of 
a very serious character occurred. At length, on the 
7th of November, Dunmore proclaimed martial law, 
denounced as traitors all who were capable of bearing 
arms and did not resort to His Majesty's standard, 

' Howe's Virginia Historical Collections, p. 238. 



14 LIFE OF JOHN MARSHALL 

and offered freedom to all slaves ^ appertaining to 
rebels' who would join His Majesty's troops. He set 
up his standard in Norfolk and Princess Anne, pre- 
scribed an oath of allegiance, and, from among the 
Loyalists, received a considerable accession to his 
force. 

At Suffolk, eighteen miles south-west of Norfolk, 
the Virginians had collected provisions for their troops. 
To capture these provisions was an object of import- 
ance to Lord Dunmore. To prevent it, was an object 
of equal importance to the Virginians. The Provi- 
sional Government had kept a steady eye on his lord- 
ship's movements, and clearly perceived the danger of 
permitting him to retain a foothold at Norfolk. They 
despatched Colonel Woodford, with a detachment of 
minute men, including Marshall's company, to protect 
the provisions at Suffolk, and relieve Norfolk from the 
presence of the enemy. The engagement which we 
are now to relate, was the result. 

About twelve miles from Norfolk, on the only prac- 
ticable road to Suffolk, was the Great Bridge, as it was 
termed, and built over the southern branch of Eliza- 
beth River. Here Dunmore, apprised of Woodford's 
movements, erected a stockade fort, and supplied it 
with a numerous artillery. The position was a strong 
one, surrounded on all sides by water and marshes, 
and only accessible by a long dike. This was com- 
manded by his cannon, as well as the bridge and the 
causeway on the other side, over which the Americans 
must pass. The Governor's troops, however, were not 
equal to his intrenchments. They consisted of two 
hundred regulars, a corps of Norfolk Loyalists, and 'a 
shapeless mass of varlets of every color.' ' 



Botta. 



HIS MILITARY SERVICES. 15 

When Woodford arrived at the bridge, he threw up 
a breastwork at the extremity of the causeway on his 
side. Neither party seemed disposed to begin the 
attack. Several days passed, without any serious 
movement on either side. In numbers and character, 
the Virginians were much superior to the enemy. 
True, for the most part, they were unused to warfare, 
but being chiefly young men, they were full of enthu- 
siasm, and ready for action. It was here and now, 
that Lieutenant Marshall had his first experience of 
war. In the action which ensued, he is said to have 
borne an honorable part. 

The enemy were induced to begin the attack by 
stratagem. A servant of Major Marshall's, after being 
instructed in the part he was to play, deserted to the 
enemy, and reported that there were not at the bridge 
more than three hundred sliirUmen, This tale Lord 
Dunmore believed, and accordingly despatched his 
regular troops, together with about three hundred 
blacks and Loyalists, to drive the Virginians from 
their position. The attack was made on the 9th of 
December. Captain Fordyce, a brave and accom- 
plished officer, led the attacking party. As they ad- 
vanced along the causeway to storm the breastwork, 
they were exposed to the deadly fire of the American 
riflemen. The effect was overwhelming. The action 
did not last more than twenty or thirty minutes ; but 
the enemy were totally routed. Lord Dunmore aban- 
doned his intrenchments, spiked his cannon, and again 
fled to his ships. 

On the fourteenth, the Americans entered Norfolk. 
Here Marshall remained with his corps, until the town 
was bombarded and burned by the British shipping, 
on the 1st of January following. 

In July, 1776, he was appointed first Lieutenant in 



16 LIFE OF JOHN MARSHALL. 

the eleventh Virginia regiment, and, in the following 
winter, joined the army in camp at Morristown. That 
army, notwithstanding the successes at Trenton and 
Princeton, was in the most wretched condition, both 
as to numbers and materiel. Washington's letter to 
the Governor and Council of Connecticut, describing 
the actual state of affairs, is said to have drawn tears 
from those who heard it read/ 'Nothing but a good 
face and false appearances,' he subsequently wrote, 
* have enabled us hitherto to deceive the enemy re- 
specting our strength.'^ 

It was the fortune of young Marshall to follow the 
standard of his country in the gloomiest period of the 
war; a period, when patient endurance of suffering 
was the highest quality the soldier could display. In 
May, when the campaign of 1777 was about opening, 
he received the appointment of Captain. In this sub- 
ordinate post he was not in a position to attract the 
eye of the historian, and, consequently, we are with- 
out any detailed account of his actual conduct in the 
field. Suffice it to say, therefore, that he was engaged 
in the action at Iron Hill, which preluded the Battle 
of Brandywine, when the corps to which he was 
attached did memorable service. Indeed, the Virginia 
troops behaved, in this battle, with the greatest gal- 
lantry, and merited universal praise. But the victory, 
or the results of victory, remained with the British. 
In the course of a few days. General Howe made his 
triumphal entry into Philadelphia.^ 

Then followed the Battle of Germantown,^ a battle 
which would have resulted in favor of the Americans, 
had not victory been snatched from their grasp, in 

' Gordon, vol. ii., p. 170. * Ibid., p. 198. 

» September 26th, 1777. * October 3d, 1777. 



HIS MILITARY SERVICES. 17 

the rDtinner thus described by one of the American 
Generals. 'At Germantown,' he says, ' fortune smiled 
on our arms for hours. The enemy were broke, dis- 
persed, and flying on all quarters ; we were in posses- 
sion of their whole encampment, together with their 
artillery park, &c. A wind-miU attack was made on a 
house into which six light companies had thrown 
themselves to avoid our bayonets ; this gave time to 
the enemy to rally ; our troops were deceived by this 
attack ; taking it for something formidable, they fell 
back to assist in what they deemed a serious matter. 
The enemy finding themselves no further pursued, and 
believing it to be a retreat, followed. Confusion en- 
sued, and we ran away from the arms of victory ready 
to receive us.' ^ 

Marshall was with the column that halted to attack 
Chew's House — an attack to which the ill success of 
the day is undoubtedly attributable. No further serious 
engagement took place between the two armies during 
this campaign; and on the 19th of December, Wash- 
ington, with his exhausted troops, went into winter 
quarters at Valley Forge. The cold was extreme ; yet 
his men were without clothes to cover their nakedness, 
without blankets to lie on, and without shoes, so that 
their marches could be traced by the blood from their 
feet. They were as often without provisions as with. 
But these men, taking up their winter quarters within 
a day's march of the enemy, without a house or hut to 
cover them, till they could be built, pinched by hun- 
ger, and stiffened by cold, submitted to hardships and 
privations like these without a murmur. Well might 
Washington declare without arrogance, or the smallest 
deviation from truth, ' that no history, now extant, 

' Gordon, vol. ii., p. 235. 



18 LIFE OF JOHN MARSHALL. 

can furnish an instance of an army's suffering such 
uncommon hardships as ours has done, and bearing 
them with the same patience and fortitude.'^ 

Marshall's mess-mates, during this memorable win- 
ter, were Lieutenant Robert Porte rfield, Captain 
Charles Porterfield, Captain Johnson, and Lieutenant 
Philip Slaughter. The latter has described the suffer- 
ings they endured from want of food and clothing. 
' Most of the officers gave to their almost naked sol- 
diers nearly the whole of their clothing, reserving only 
that they themselves had on. Slaughter was reduced 
to a single shirt. While this was being washed, he 
wrapped himself in a blanket. From the breast of his 
only shirt he had wrist-bands and a collar made, to 
complete his uniform for parade. Many of his brother 
officers were still worse off, having no under garment 
at all ; and not one soldier in five had a blanket. They 
all lived in rude huts, and the snow was knee-deep 
the whole winter. Washington daily invited the offi- 
cers, in rotation, to dine with him at his private table; 
but, for want of decent clothing, few were enabled to 
attend. Slaughter being so much better provided, fre- 
quently went in place of others, that, as he said, "his 
regiment might be represented." While in this starv- 
ing condition, the country people brought food to the 
camp. Often the Dutch women were seen riding in, 
sitting on bags on their horses' backs, holding two or 
three bushels each of apple pies, baked sufficiently 
hard to be thrown across the room without breaking. 
These were purchased eagerly, eaten with avidity, 
and considered a great luxury.' 

Slaughter says, 'Marshall was the best-tempered 
man he ever knew. During their sufferings at Valley 

' Washington's Writings, vol. v., pp. 321, 329. 



HIS MILITARY SERVICES. 19 

Forge, nothing discouraged, nothing disturbed him; if 
he had only bread to eat, it was just as well; if onljf 
meat, it made no difference. If any of the ofi&cers 
muruiured at their deprivations, he would shame them 
by good-natured raillery, or encourage them by his 
own exuberance of spirits. He was an excellent com- 
panion ; and idolized by the soldiers, and his brother 
officers, whose gloomy hours were enlivened by his in- 
exhaustible fund of anecdote.' ^ 

A further testimony, as to the estimation in which 
he was held by his brother officers, is found in the fol- 
lowing extract. ' When the writer of this article first 
saw him,' says a cotemporary, ' he held the commis- 
sion of Captain in that regiment.'^ It was in the try- 
ing, severe winter of 1777-8, a few months after the 
disastrous battles of Brandywine and Germantown had 
tested his firmness, hardihood, and heroism. The 
spot where we acquired our earliest information of 
him, was the famous hutted encampment at Valley 
Forge, about thirty miles from Philadelphia. By his 
appearance then, we supposed him about twenty-two 
or twenty-three years of age. Even so early in life, 
we recollect that he appeared to us primus inter pares, 
for, amidst the many commissioned officers, he was dis- 
criminated for superior intelligence. Our informant, 
Colonel Ball, of another regiment in the same line, 
represented him as a young man, not only brave, but 
signally intelligent. Indeed, all those who intimately 
knew him, affirmed that his capacity was held in such 
estimation by many of his brother officers, that, in 
many disputes of a certain description, he was con- 
stantly chosen arbiter; and that officers, irritated bv 



Howe's Virginia Historical Collectious, pp. 239, 28G. See note A 
'Eleventh Virginia Regiment. 



20 LIFE OF JOHN MARSHALL. 

dijQferences, or animated by debate, often submitted the 
contested points to his judgment, which, being in 
writing, and accompanied, as it commonly was, by 
sound reasons in support of his decision, obtained 
general acquiescence.' * 

He was often employed, during this period of his 
military life, as Deputy Judge Advocate. The per- 
formance of the duties of this post extended his ac- 
quaintance among the officers of the army. It was 
now that he became acquainted with Colonel Hamil- 
ton, who was acting as aid-de-camp of the Comman- 
der-in-chief. 'Of Hamilton,' says Judge Story, 'he 
always spoke in the most unreserved manner, as a sol- 
dier and statesman of consummate ability; and, in 
point of comprehensiveness of mind, purity of patriot- 
ism, and soundness of principles, as among the first 
that had ever graced the councils of any nation. His 
services to the American Republic he deemed to have 
been of inestimable value, and such as had eminently 
conduced to its stability, its prosperity, and its true 
glory.' ^ But, notwithstanding the deep respect he 
always entertained for Hamilton, 'whose unreserved 
friendship, at a subsequent period of his life, he fami- 
liarly enjoyed,' we shall hereafter see that, when the 
man by whose hand he had fallen, was brought before 
him on a charge of treason, he held the scales of jus- 
tice with so nice a poise, he held up before the pri- 
soner the shield of the law with so firm a hand, that 
if it did not excite the surprise, at least, provoked the 
indignation of the Chief Executive Magistrate, w^ho 
pressed the conviction of Burr with a zeal that seem- 
ingly had its root in vindictiveness. 

' North American Review for January, 1828, p. 8. 

* Story'B Discourse on the Life, &c., of John Marshall, p. 16 



HIS MILITARY SERVICES. 21 

The possession of Philadelphia promised so little 
ad»vant;ige to the Royal forces, and, indeed, exposed 
them to such danger, that the British Ministry sent 
out orders, in the spring of 1778, for its speedy evacu- 
ation. These orders reached Sir Henry Clinton, who 
had superseded Sir William Howe, early in June. He 
immediately addressed himself to the task of executing 
them. In the night of the 18th, the city was evacu- 
ated. The American army was immediately put in 
motion, with the view to harass and impede the pro- 
gress of the enemy. 

Marshall was in the Battle of Monmouth, which 
succeeded. He remained with the army through the 
campaign, as well as during the following winter. In 
the campaign of 1779, it was his fortune to be con- 
nected with or engaged in two of the most brilliant 
actions that distinguished it. He was with Wayne at 
the assault of Stony Point, on the night of the 16th 
of June, and with the detachment to cover the retreat 
of Major Lee, after his surprise of the enemy's post at 
Powle's Hook, on the 19th of July ; an enterprise 
which threw a lustre upon the American arms. He 
continued with the army until the close of the year, 
when a part of the Virginia line was sent to South 
Carolina, to co-operate in the defence of that State. It 
so happened, that he was attached to the other part, 
whose term of enlistment now expired. Being thus 
without command, he, with other supernumeraries, 
was directed to return home, in order to take charge 
of such men as the State might raise for them. 

No further opportunity for active military service 
occurred, until the arrival in Virginia of the British 
army under General Leslie, in October, 1780. Cap- 
tain Marshall now joined the small force under Baron 
Steuben, who had been left by General Greene, (while 



22 LIFE OF JOHN MARSHALL. 

on his way to assume the command of the Southern 
army,) to direct the defence of the State. General Les- 
lie, however, finding that Lord Cornwallis could not 
effect a junction with him, an object which was essen- 
tial to the success of the plan for the reduction of Vir- 
ginia, finally sailed for Charleston. 

Late in December, the State was again invaded by 
Arnold. Marshall joined the forces collected to oppose 
him, and continued in service until Arnold retired to 
Portsmouth, in the latter part of the following January. 
As there was still a redundancy of officers in the Vir- 
ginia line, he now resigned his commission ; and for 
the future we shall view him in a different walk of 
life. 

Note A. See page 19. In a letter to the author, the late Josiah 
Quincy thus writes of Marshall : 

" With Marshall I had considerable acquaintance during the eight 
years I was a member of Congress, from 1805 to 1813, played chesa 
with him, and never failed to be impressed with the frank, cordial, 
child-like symplicity, and unpretending manner of the man, of 
whose strength and breadth of intellectual power I was, even a.t that 
early period of his professional life, well apprised. In one of the 
above-mentioned years, I dined at Georgetown with John Randolph 
and a large company of Virginians and other Southern gentlemen. 
The conversation turned to Judge Marshall, of whom the Virginians 
were very proud, altho' some, if not all of them, did not coincide 
with his well-known political faith. All, however, were loud in his 
praises, and anecdotes were told of his early life, and particularly of 
his athletic powers ; among others I remember it was said that he 
surpassed in them any man in the army ; that when the soldiers 
were idle at their quarters, it was usual for the oflticers to engage in 
matches at quoits, or in jumping and racing. That in these exercises 
Marshall excelled all his competitors ; that he would throw a quoit 
further, and beat at a race, any other ; that he was the only man 
who, with a running jump, could clear a stick laid over the heads of 
two men as tall as himself. On one occasion he ran in his stocking 
feet, with a comrade, and his mother in knitting his stockings had 
the legs of blue yarn and the heels of white. This circumstance, 
combined with his uniform success in the race, led the soldiers, who 
always were present at these races, to give him the sobriquet of 
' Silverheels,' the name by which he was generally known among 
them." 



CHAPTER rV. 

HIS PRACTICE AT THE BAR. 
1781 — 1799. 

During the season of inaction following his return 
to Virginia, in the winter of 1779-80, Marshall re- 
sumed the study of the law. He attended, at William 
and Mary's College, a course of law lectures by Mr. 
Wythe, better known afterwards as Chancellor Wythe, 
and lectures upon natural philosophy by Mr. Madison, 
then President of the College, and subsequently Bishop 
of Virginia. He was connected with the institution 
until the summer vacation of 1780, and soon after was 
admitted to the Bar. But, in the tumult of war, the 
courts of law were suspended in Virginia, and not re- 
opened until after the capture of Cornwallis, in Octo- 
ber, 1781. From the termination of Arnold's invasion, 
when he resigned his commission, until he began his 
practice upon the re-opening of the Courts, Marshall 
devoted himself, with unremitting attention, to the 
study of his future profession. 

It was at this period of his life, either in the sum- 
mer of 1780 or 1781, that he undertook a journey to 
Philadelphia on foot, in order to be inoculated for the 
small-pox. He walked at the rate of thirty-five miles 
a day. On his arrival, such was his shabby appear- 
ance, that he was refused admission into one of the 
hotels; his long beard, and worn-out garments, proba- 

23 



24 LIFE OF JOHN MARSHALL. 

bly suggesting the idea that his purse was not adequate 
to his entertainment/ But to the man who had under- 
gone the hardships of Morristown and Valley Forge, 
who had been reduced almost to nakedness, any garb 
that served the purpose of a covering, must have 
seemed sufficient for any occasion. In truth, he was 
at all times careless of his dress, particularly in early 
life ; and once, as we shall presently relate, lost a 
generous fee in consequence. 

He began his professional career in Fauquier, his 
native county ; but, in the course of two years, re- 
moved to Richmond, where he continued to reside 
until his death. His stock of legal knowledge, as we 
may infer from the short time he had devoted to its 
acquisition, was not very extensive ; but it was said 
of the Virginians, more than a hundred and fifty years 
ago, that, being naturally of good parts, they neither 
require nor admire as much learning as they do in 
Britain.^ At any rate, such was the felicity of Mar- 
shall's understanding, that on a slender foundation of 
legal science he soon raised himself to the highest 
reputation in his profession. He attributed his early 
success at the Bar to the friendship of his old com- 

' Southern Literary Messenger, vol. ii., p. 183. 

' 'The Present State of Virginia; by Hugh Jones, A.M., Chap- 
lain to the Honorable Assembly, and lately Minister of Jamestown, 
in Virginia.' The Reverend author seems to have been charmed 
with his residence among the Virginians, and thus asserts their supe- 
riority over all the other colonists: — 'If New England,' he says, 'be 
called a receptacle of Dissenters, and an Amsterdam of religion, Penn- 
sylvania a nursery of Quakers, Maryland the retirement of Roman 
Catholics, North Carolina the refuge of runaways, and South Carolina 
the delight of Buccaneers and Pyrates, Virginia may be justly es- 
teemed the happy retreat of true Britons, and true churchmen for 
the most part ; neither soaring too high, nor dropping too low, conse- 
quently should merit the greater esteem and encouragement.' 



HIS PRACTICE AT THE BAR. 25 

panions in arms. ' They knew,' he would say, * thai 
I felt their wrongs, and sympathized in their suffer- 
ings, and had partaken of their labors, and that I vin- 
dicated their claims upon their country with a warm 
and constant earnestness.'^ We have seen how strong 
was their attachment to him. * I myself,' says Judge 
Story, ' have often heard him spoken of by some of 
these veterans in terms of the warmest praise. In an 
especial manner the Revolutionary officers of the Vir- 
ginia line (now "few and faint, but fearless still") 
appeared almost to idolize him, as an old friend and 
companion in arms, enjoying their unqualified confi- 
dence.' ^ 

They knew his abilities, his integrity, and loved him 
for the goodness of his heart. Strangers, on the con- 
trary, judging from external appearances, might not 
so readily have given him credit for qualities that 
would insure success at the Bar. For, though easy, 
frank, friendly, and cordial in his manners, and social 
in his habits, he was yet negligent in his dress, not 
very studious, and with nothing in his exterior to 
attract clients. The following anecdote is character- 
istic of his rustic appearance, at a time when his com- 
prehension and grasp of mind had already attracted 
the attention of the Bench and Bar, and he was ad- 
vancing with sure steps to the head of his profession. 
He ' was one morning strolling through the streets of 
Richmond, attired in a plain linen roundabout and 
shorts, with his hat under his arm, from which he was 
eating cherries, when he stopped in the porch of the 
Eagle hotel, indulged in some little pleasantry with 
the landlord, and then passed on. Mr. P., an elderly 

' New York Review, vol. iii., p. 333. 

■ Discourse upon the Life, &c., of John Marshall, p. 16. 



26 LIFE OF JOHN MARSHALL. 

gentleman from the country, then present, who had a 
case coming on before the Court of Appeals, was re- 
ferred by the landlord to Marshall, as the best advo- 
cate for him to employ ; but the careless, languid air 
of the young lawyer had so prejudiced Mr. P., that he 
refused to engage him. On entering Court, Mr. P. was 
a second time referred by the Clerk of the Court, and 
a second time he declined. At this moment entered 
Mr. v., a venerable-looking legal gentleman, in a pow- 
dered wig and black coat, whose dignified appearance 
produced such an impression on Mr. P. that he at once 
engaged him. In the first case which came on, Mar- 
shall and Mr. V. each addressed the Court. The vast 
inferiority of his advocate was so apparent, that, at 
the close of the case, Mr. P. introduced himself to 
young Marshall, frankly stated the prejudice which 
had caused him, in opposition to advice, to employ Mr. 
V. ; that he extremely regretted his error, but knew 
not how to remedy it. He had come into the city with 
one hundred dollars, as his lawyer's fee, which he had 
paid, and had but five left, which, if Marshall chose, 
he would cheerfully give him, for assisting in the case. 
Marshall, pleased with the incident, accepted the offer, 
not, however, without passing a sly joke at the omiii- 
pofence of a powdered wig and black coat.' ' 

Marshall's rise at the Bar was rapid. Once placed 
in the line of employment, his extraordinary talents 
could hardly fail to make the same impression on who- 
ever witnessed their display, as on Mr. P.. For, with- 
out possessing scarcely a single attribute that we natu- 
rally ascribe to the orator, without beauty of style, 
melody of voice, grace of person, or charm of manner, 
he, nevertheless, was as distinguished as an advocate, 

' Howe's Virginia Historical Collections, p. 266. 



HIS PRACTICE AT THE BAR. 27 

as he afterwards became as a judge. The qualities 
that gave him such pre-eminence at the Bar are thus 
delineated by the graceful pen of Mr. Wirt : — 

*This extraordinary man,' says Mr, Wirt, 'without 
the aid of fancy, without the advantages of person, 
voice, attitude, gesture, or any of the ornaments of an 
orator, deserves to be considered as one of the most 
eloquent men in the world; if eloquence may be said 
to consist in the power of seizing the attention with 
irresistible force, and never permitting it to elude the 
grasp, until the hearer has received the conviction 
which the speaker intends. His voice is dry and 
hard ; his attitude, in his most effective orations, was 
often extremely awkward ; while all his gesture pro- 
ceeded from his right arm, and consisted merely in a 
perpendicular swing of it, from about the elevation of 
his head to the bar, behind which he was accustomed 
to stand. As to fancy, if she hold a seat in his mind 
at all, his gigantic genius tramples with disdain on all 
her flower-decked plats and blooming parterres. How 
then, you will ask, how is it possible, that such a man 
can hold the attention of an audience enchained 
through a speech of even ordinary length ? I will tell 
you. He possesses one original, and almost super- 
natural faculty ; the faculty of developing a subject 
by a single glance of his mind, and detecting at once 
the very point on which every controversy depends. 
No matter what the question ; though ten times more 
knotty than " the gnarled oak," the lightning of hea- 
ven is not more rapid, or more resistless, than his 
astonishing penetration. Nor does the exercise of it 
seem to cost him an efibrt. On the contrary, it is as 
easy as vision. I am persuaded, that his eyes do not 
fly over a landscape, and take in its various objects 



28 LIFE OF JOHN MARSHALL. 

with more promptitude and facility, than his mind 
embraces and analyzes the most complex subject. 

' Possessing, while at the Bar, this intellectual eleva- 
tion, which enabled him to look down and comprehend 
the whole ground at once, he determined immediately, 
and without difficulty, on which side the question 
might be most advantageously approached and assailed. 
In a bad cause, his art consisted in laying his premises 
BO remotely from the point directly in debate, or else 
in terms so general and so specious, that the hearer, 
seeing no consequence which could be drawn from 
them, was just as willing to admit them as not; but, 
his premises once admitted, the demonstration, how- 
ever distant, followed as certainly, as cogently, as in- 
evitably, as any demonstration in Euclid. All his 
eloquence consists in the apparently deep self-convic- 
tion, and emphatic earnestness of his manner; the cor- 
respondent simplicit}^ and energy of his style ; the 
close and logical connection of his thoughts ; and the 
easy gradations by which he opens his lights oa the 
attentive minds of his hearers. The audience are 
never permitted to pause for a moment. There is no 
stopping to weave garlands of flowers, to hang in fes- 
toons around a favorite argument. On the contrary, 
every sentence is progressive ; every idea sheds new 
light on the subject; the listener is kept perpetually 
in that sweetly pleasurable vibration, with which the 
mind of man always receives new truths ; the dawn 
advances with easy but unremitting pace ; the subject 
opens gradually on the view ; until, rising, in high re- 
lief, in all its native colors and proportions, the argu- 
ment is consummated, by the conviction of the de- 
lighted hearer." 

' The British Spy, pp. 178-181 



HIS PRACTICE AT THE BAR. 29 

If Marshall, as he first appeared at the Bar, did not 
bear a finished resemblance to the picture thus sketched 
by Mr. Wirt nearly a quarter of a century after, he 
certainly possessed the more striking outlines of it. 
Strength, cogency of reasoning, was the characteristic 
excellence of all his intellectual displays. His maxim 
.seems always to have been, ' aim exclusively at 
strength.' Of eloquence, in the usual sense, he evi- 
dently was not emulous, and, perhaps, not capable. 
His object was to convince, and he sought to do this 
in the most direct and simple manner. It was always 
remarkable of him, says Wirt, ' that he almost inva- 
riably seized one strong point only, the pivot of the 
controversy ; this point he would enforce with all his 
powers, never permitting his own mind to waver, nor 
obscuring those of his hearers by a cloud of inferior, 
unimportant considerations.'^ This 'convincing elo- 
quence,' which he so pre-eminently possessed, ' is infi- 
nitely more serviceable to its possessor than the most 
florid harangue, or the most pathetic tones that can be 
imagined ; and the man who is thoroughly convinced 
himself, who understands his subject, and the language 
he speaks in, will be more apt to silence opposition, 
than he who studies the force of his periods, and fills 
our ears with sounds, while our minds are destitute of 
conviction.' ^ 

The period succeeding the Revolutionary War wit- 
nessed a great accession of business in the Courts. 
Outstanding debts, unfulfilled contracts, together with 
the mutations property had undergone amid the con- 
flicts of a long war, were fruitful sources of litigation. 
*Does not every gentleman here know' demanded 
Marshall in the Virginia Convention of 1788, when 

» The British Spy, p. 211. » The Bee, No. VI. 



30 LIFE OF JOHN MARSHALL. 

raaintftining the necessity of a Federal Judiciary, 'that 
the causes in our Courts are more numerous than they 
can decide, according to their present construction ? 
Look at the dockets. You will find them crowded 
with suits, which the life of man will not see deter 
mined. If some of these suits be carried to other 
Courts, will it be wrong? They will still have busi- 
ness enough.' 

It was a period not only of profitable employment 
to the Bar, but a period calculated to stimulate the 
highest energies of their minds. The fair fabric of 
x\merican jurisprudence was yet unreared. The law 
was in an unsettled state. Questions of novel charac- 
ter occupied the attention of the Courts; questions to 
be settled, not by the weight of authority, but by the 
light of reason. It was in the investigation and 
argument of causes like these, where the advocate 
was neither aided nor impeded by precedents; where 
he was compelled to rely on the unassisted powers of 
his own mind; to support his own thoughts, ra,ther 
than quote the thoughts of others, that the great abili- 
ties of Marshall found an adequate theatre for their 
employment and display. 

When the Federal Judiciary was established, the 
sphere of his practice was enlarged. Several of the 
causes in which he was engaged possessed great public 
interest, and attracted universal attention. The fame 
of his arguments spread through the Union. Ware 
vevfius Hylton, familiarly known as the British debt 
case, was one of the causes in which he particularly 
distinguished himself. It came on for trial at the Cir- 
cuit Court of the United States at Richmond, in 1793; 
Chief Justice Jay, Judge Iredell, and Griffin, the 
Judge of the District Court, holding the term. Patrick 
Henry, Marshall, Alexander Campbell, and James 



HIS PRACTICE AT THE BAR. 31 

Innis, appeared for the American debtors; and An- 
drew Ronald, John Wickham, 'the eloquent, the witty, 
and the graceful," and Starke, and Baker, for the 
English creditors. 

The question was, whether the treaty of peace, 
which provided that creditors on either side should 
meet with no laicfid impediment to the recovery of the 
full value of all bona fide debts theretofore contracted, 
revived debts which had been sequestered during the 
war by an act of the Virginia Legislature. 

The eminence of the counsel, as well as the exten- 
sive interests to be affected by the decision of the 
Court, brought together an eager and expectant aud- 
ience. The Countess of Huntington, then in this coun- 
try, was present during the trial, and remarked, after 
hearing the several speakers, 'that if every one of 
them had spoken in Westminster Hall, they would 
have been honored with a peerage.'^ 'The cause,' said 
Judge Iredell, ' has been spoken to, at the Bar, with a 
degree of ability equal to any occasion. Howevei 
painfully I may at any time reflect on the inadequacy 
of my own talents, I shall, as long as I live, remember 
with pleasure and respect the arguments which I have 
heard in this case. They have discovered an inge- 
nuity, a depth of investigation, and a power of reason- 
ing fully equal to any thing I have ever witnessed, and 
some of them have been adorned with a splendor of 
eloquence surpassing what I have ever felt before. 
Fatigue has given way under its influence, and the 
heart has been warmed, while the understanding has 
beeit instructed.' ^ 

Patrick Henry shone, on this occasion, with unsur- 

' Howe's Virginia Historical Collections, p. 221, 
' Dallas' Reports, vol. iii., p. 257. 



32 LIFE OF JOHN MARSHALL. 

passed splendor. His vivid feelings, that irresistible 
charm of his eloquence, were fully aroused, and en- 
listed in the cause. He made unwonted preparation 
for the trial; shutting himself up in his office for three 
days, during which time he did not see even his 
family ; his food being handed by a servant through 
the office-door.^ His argument occupied the attention 
of the Court during three days. He had a diamond 
ring on his finger, and, while he was speaking, the 
Countess of Huntington exclaimed to Judge Iredell, 
who had never before heard him, 'The diamond is 
hlazing!' 'Gracious Godl'rephed he, ' he is an ora- 
tor indeed.' In this cause he injured his voice so that 
it never recovered its original power.' 

We have no abstract of Marshall's argument on this 
occasion, and shall not attempt to supply its place by 
resorting to conjecture. Its character, however, may 
be surmised by his subsequent argument before the 
Supreme Court of the United States, whither the cause 
was carried by writ of error. His colleague in the 
trial before the latter tribunal was Alexander Camp- 
bell. It was, doubtlesh, to the arguments on this occa- 
sion to which Wirt refers in the following extract of a 
letter to his friend Gilmer. He speaks of them, how- 
ever, as having been made in the cause which turned 
on the constitutionality of the carriage tax, a cause, 
indeed, which was heard at the same term of the 
Court ; but Marshall was not one of the counsel. 

' Pi'om what I have heard of Campbell,' says Wirt, 
* I believe that, for mere eloquence, his equal has 
never been seen in the United States. He and the 



' Virginia Historical Collectioos, supra, 

' Ibid. See also Wirt's Patrick Henry, for abstract of his argument 



HIS PRACTICE AT THE BAR. 33 

Chief Justice went to Philadelphia to argue a cause 
which turned on the constitutionality of the carriage 
tax. It was somewhere about 1795 or 1796. They 
were opposed by Hamilton, Lewis, and others. Camp- 
bell played off his Appollonian airs ; but they were 
lost. Marshall spoke, as he always does, to the judg- 
ment merely, and for the simple purpose of convincing. 
Marshall was justly pronounced one of the greatest 
men of the country. He was followed by crowds, 
looked upon, and courted with every evidence of admi- 
ration and respect for the great powers of his mind. 
Campbell was neglected and slighted, and came home 
in disgust. Marshall's maxim seems always to have 
been, " aim exclusively at strength ;" and from his 
eminent success, I say, if I had my life to go over 
a^^ain, I would practice on his maxim with the most 
1 'gorous severity, until the character of my mind was 
stablished.' * 

Marshall's argument, as preserved in the report of 
the case, will now claim our attention : — 

*The case resolves itself,' said he, 'into two general 
propositions. First, That the Act of Assembly of Vir- 
ginia is a bar to the recovery of the debt, independent 
of the treaty. Secondly, That the treaty does not re- 
move the bar. 

' That the Act of Assembly of Virginia is a bar to 
the recovery of the debt, introduces two subjects for 
consideration : — 

* First, Whether the Legislature had power to ex- 
tinguish the debt? Secondly, Whether the Legislature 
had exercised that power ? 

' Kennedy's Wirt, vol. ii., p. 83. 



34 LIFE OF JOHN MARSHALL. 

^ First. It has been conceded, that independent na- 
tions have, in general, the right of confiscation ; and 
that Virginia, at the time of passing her law, was an 
independent nation. But, it is contended, that, from 
the peculiar circumstances of the war, the citizens of 
each of the contending nations having been members 
of the same government, the general right of confisca- 
tion did not apply, and ought not to be exercised. It 
is not, however, necessary for the defendant in error 
to show a parallel case in history ; since it is incum- 
bent on those who wish to impair the sovereignty of 
Virginia, to establish, on principle, or precedent, the 
justice of their exception. That State being engaged 
in a war, necessarily possessed the powers of war; and 
confiscation is one of those powers, weakening the 
party against whom it is employed, and strengthening 
the party that employs it. War, indeed, is a state of 
force ; and no tribunal can decide between the bellige- 
rent powers. But did not Virginia hazard as much by 
the war, as if she had never been a member of the 
British empire ? Did she not hazard more, from the 
very circumstance of its being a civil war? It will be 
allowed, that nations have equal powers; and that 
America, in her own tribunals at least, must, from the 
4th of July, 1776, be considered as independent a na- 
tion as Great Britain. Then, what would have been 
the situation of American property, had Great Britain 
been triumphant in the conflict ? Sequestration, con- 
fiscation, and proscription would have followed in the 
train of that event ; and why should the confiscation 
of British property be deemed less just in the event 
of the American triumph ? The rights of war clearly 
exist between members of the same empire, engaged 
in a civil war. 

* But, suppose a suit had been brought, during the 



HIS PRACTICE AT THE BAR. 35 

war, by a British subject against an American citizen, 
it could not have been supported ; and, if there was a 
power to suspend the recovery, there must have been 
a power to extinguish the debt. They are, indeed, 
portions of the same power, emanating from the same 
source. The legislative authority of any country can 
only be restrained b}'^ its own municipal constitution. 
This is a principle that springs from the very nature 
of society; and the judicial authority can have no 
right to question the validity of a law, unless such a 
jurisdiction is expressly given by the Constitution. It 
is not necessary to inquire how the judicial authority 
should act, if the Legislature were evidently to violate 
any of the laws of God ; but property is the creature 
of civil society, and subject, in all respects, to the dis- 
position and control of civil institutions 

* But it is now to be considered, whether, if the 
Legislature of Virginia had the power of confiscation, 
they have exercised it? The third section of the 
Act of Assembly discharges the debtor; and, on the 
plain import of the term, it may be asked, if he is dis- 
charged, how can he remain charged ? The expression 
is, he shall be discharged from the debt ; and yet, it is 
eon tended he shall remain liable to the debt. Suppose 
the law had said, that the debtor should be discharged 
from the Commonwealth, but not from his creditor, 
would not the Legislature have betrayed the extremest 
folly in such a proposition? and what man in his 
senses would have paid a farthing into the treasury 
under such a law ? Yet, in violation of the expressions 
of the Act, this is the construction which is now 
attempted. 

' It is, likewise, contended, that the Act of Assembly 
does not amount to a donfiscation of the debts paid 
into the treasury; and that the Legislature had no 



36 LIFE OF JOHN MARSHALL. 

power, as between creditors and debtors, to make a 
substitution, or commutation, in the mode of payment. 
But, what is a confiscation? The substance, and not 
the form, is to be regarded. The State had a right 
either to make the confiscation absolute, or to modify 
it as she pleased. If she had ordered the debtor to 
pay the money into the treasury, to be applied to pub- 
lic uses, would it not have been, in the eye of reason, 
a perfect confiscation ? She has thought proper, hoW' 
ever, only to authorize the payment, to exonerate the 
debtor from his creditor, and to retain the money in 
the treasurj^ subject to her own discretion, as to its 
future appropriation. As far as the arrangement has 
been made, it is confiscatory in its nature, and must 
be binding on the parties; though, in the exercise of 
her discretion, the State migbt choose to restore the 
whole, or any part, of the money to the original credi- 
tor. Nor is it sufficient to say, that the payment was 
voluntary, in order to defeat the confiscation. A law 
is an expression of the public w^ill ; which, when ex- 
pressed, is not the less obligatory, because it imposes 
no penalty. . . . 

* Having thus, then, establised that, at the time of 
entering into the treaty of 1783, the defendant owed 
nothing to the plaintiff, it is next to be inquired, whe- 
ther that treaty revived the debt in favor of the plain- 
tiff, and removed the bar to a recovery, which the law 
of Virginia had interposed ? The words of the fourth 
article of the treaty are, " that creditors on either side 
shall meet with no lawful impediment to the recovery 
of the full value, in sterling money, of all bona fide 
debts heretofore contracted." Now, it may be asked, 
who are creditors? There cannot be a creditor where 
there is not a debt; and British debts were extin- 
guished by the act of confiscation. The articles, there- 



HIS PRACTICE AT THE BAR. 37 

fore, must be construed with reference to those credi- 
tors who had hona fide debts subsisting, in legal force, 
at the time of making the treaty ; and the word reco- 
very can have no effect to create a debt, where none 
previously existed. Without discussing the power of 
Congress to take away a vested right by treaty, the 
fair and rational construction of the instrument itself 
is sufficient for the defendant's cause. The words 
ought, surely^ to be very plain, that shall work so evi- 
dent a hardship, as to compel a man to pay a debt 
which he had before extinguished. The treaty itself 
does not point out any particular description of per- 
sons who were to be deemed debtors ; and it must be 
expounded in relation to the existing state of things. 

* It is not true, that the fourth article can have no 
meaning, unless it applies to cases like the present. 
For instance — there was a law of Virginia, which pro- 
hibited the recovery of British debts, that had not 
been paid into the treasury. These were hona fide 
subsisting debts ; and the prohibition was a legal im- 
pediment to the recovery, which the treaty was in- 
tended to remove. So, likewise, in several other 
States, laws had been passed authorizing a discharge 
of British debts in paper money, or by a tender of pro- 
perty at a valuation, and the treaty was calculated to 
guard against such impediments to the recovery of the 
sterling value of those debts. It appears, therefore, 
that, at the time of making the treaty, the state of 
things was such, that Virginia had exercised her sove- 
reign right of confiscation, and had actually received 
the money from the British debtors. If debts thus 
paid were within the scope of the fourth article, those 
who framed the article knew of the payment ; and, 
upon every principle of equity and law, it ought to be 
presumed, that the recovery, which they contemplated^ 



38 LIFE OF JOHN MARSHALL. 

was intended against the receiving State, not against 
the paying debtor. Virginia possessing the right of 
compelling a payment for her own use, the payment 
to her, upon her requisition, ought to be considered as 
a payment to the attorney, or agent, of the British 
creditor. Nor is such a substitution a novelty in legal 
proceedings; a foreign attachment is founded upon the 
same principle. . . . 

' This Act of Virginia must have been known to the 
American and British Commissioners; and, therefore, 
cannot be repealed without plain and explicit expres- 
sions directed to that object. Besides, the public faith 
ought to be preserved. The public faith was plighted 
by the Act of Virginia; and, as a revival of the debt 
in question would be a shameful violation of the faith 
of the State to her own citizens, the treaty should re- 
ceive any possible interpretation to avoid so dishonor- 
able and so pernicious a consequence. It is evident, 
that the power of the Government to take away a 
vested right, was questionable in the minds of the 
American Commissioners, since they would not exer- 
cise that power in restoring confiscated real estate ; 
and confiscated debts, or other personal estate, must 
come within the same rule,' &c. 

The abstract of an argument like this of Marshall's, 
must necessarily give the reader an imperfect idea of 
its power. Nevertheless, he cannot fail to be impressed 
with the vigor, rigorous analysis, and close reasoning 
that mark every sentence of it. We have seen that 
it elicited great admiration at the time of its delivery, 
and enlarged the circle of his reputation. His prac- 
tice, for several years before his final withdrawal from 
the Bar, was more extensive than that of any other 
lawyer in Virginia. The Duke de Liancourt, who was 



HIS PRACTICE AT THE BAR. 39 

in Richmond, in 1797, speaking of Edmund Randolph, 
the ex-Secretary of State, says that ^he has great 
practice, and stands, in that respect, nearly on a par 
with Mr. J. Marshall, the most esteemed and cele- 
brated counsellor in this town. The profession of a 
lawyer is here, as in every other part of America, one 
of the most profitable. But, though the employment 
be here more constant than in Carolina, the practi- 
tioners emoluments are very far from being equally 
considerable. Mr. Marshall does not, from his prac- 
tice, derive above four or five thousand dollars per 
annum, and not even that sum every year.' ^ 

* Mr. J. Marshall,' says the Duke, after a more fami- 
liar acquaintance with the public characters at the 
capital of Virginia, ' conspicuously eminent as a pro- 
fessor of the law, is, beyond all doubt, one of those 
who rank highest in the public opinion at Richmond. 
He is what is termed a Federalist, and perhaps, at 
times, somewhat warm in support of his opinions, but 
never exceeding the bounds of propriety, which a man 
of his goodness, and prudence, and knowledge, is inca- 
pable of transgressing. He may be considered as a dis- 
tinguished character in the United States. His politi- 
cal enemies allow him to possess great talents, but 
accuse him of ambition. I know not whether the 
charge be well or ill-grounded, or whether that ambi- 
tion might ever be able to impel him to a dereliction 
of his principles — a conduct of which I am inclined 
to disbelieve the possibility on his part. He has 
already refused several employments under the Gene- 
ral Government, preferring the income derived from 
his professional labors (which is more than sufficient 

' Travels, vol. ii., p. 38. 



40 LIFE OF JOHN MARSHALL. 

for his moderate system of economy), together with a 
life of tranquil ease in the midst of his family, and in 
his native town.^ Even by his friends he is taxed 
with some little i)ropensity to indolence; but, even if 
this reproach were well-founded, he, nevertheless, dis- 
plays great superiority in his profession when he ap- 
plies his mind to business.' ^ 

We shall see, in the following chapters, that Mar- 
shall never sought office ; that, in most instances, he 
accepted it with reluctance, and always returned to 
his profession with renewed interest, and a determina 
tion to pursue it with undivided attention. His ambi 
tion, if that sentiment held any place in his mind at 
all, sought its gratification in the triumphs of the Bar. 
Tliough warmly and earnestly attached to the politi- 
cal principles of the Federal party, he seems to have 
had a repugnance to a political career. His nature 
was not sufficiently eager and aspiring to seek or covet 
its honors. When he engaged in the public service, 
it was, for the most part, for some special purpose, 
and on some special occasion. In truth, the insinu- 
ation that selfish ambition influenced either his sen- 
timents or conduct finds no support in any act of his 
life. 

'^ven by his friends he is taxed with some little 
propensity to indolence,' says the Duke de Liancourt; 
and his friends, we suspect, were not unjust to him. 
In truth, he was something of a truant. But such 
were the vigor and comprehension of his mind, that 
he could better affi)rd, than most men, to indulge a 
fondness for social, and even convivial enjoyment. 

' This is a mistake ; Marshall being a native of Fauquier County. 
' Travels, vol. ii., p 62 



HIS PRACTICE AT THE BAR. 41 

It was hardly possible for a lawyer of Marshall's 
conceded abilities, and great personal popularity, to 
keep aloof from public life during the eventful period 
in which he lived. Having, therefore, seen what suc- 
cess crowned his exertions at the Bar, we shall now 
proceed to trace his various services to the public, at 
home and abroad. 



CHAPTER V. 

1782-1788. 
MEMBER OF THE VIRGINIA LEGISLATURE. 

The political career of John Marshall is prominently 
distinguished for his devotion to the Union of the 
States, and a government competent to maintain it. 
He early perceived the inadequacy of the Confedera- 
tion, and the absolute necessity of a more comprehen- 
sive and vigorous central authority. He belonged, 
from the outset, to the party who would strengthen 
the General Government, and enable it to execute the 
powers with which it might be invested, independently 
of the several States. Virginia was the State of bis 
birth, and the home of his affections ; but the United 
States constituted his country — a country dearer and 
more comprehensive than the local limits within which 
he was born. His attachment to the Union was 
formed early, and fostered by the circumstances that 
attended his outset in life. 

* When I recollect,' thus he wrote long after to a 
friend, ' the wild and enthusiastic notions with which 
my political opinions of that day were tinctured, I am 
disposed to ascribe my devotion to the Union, and to 
a government competent to its preservation, at least, 
as much to casual circumstances as to judgment. I 
had grown up at a time when the love of the Union, 
42 



MEMBER OF VIRGINIA LEGISLATURE. 43 

and the resistance to the claims of Great Britain, were 
the inseparable inmates of the same bosom ; when pa- 
triotism and a strong fellow-feeling with our suffering 
fellow-citizens of Boston were identical ; when the 
maxim, "United we stand; divided we fall," was the 
maxim of every orthodox American. And I had im- 
bibed these sentiments so thoroughly, that they con- 
stituted a part of my being. I carried them with me 
into the army, where I found myself associated with 
brave men from different States, who were risking life 
and everything valuable, in a common cause, believed 
by all to be most precious; and where I was in the 
habit of considering America as my country, and Con- 
gress as my government.' * 

These sentiments were confirmed by the progress of 
events, and his experience in the Assembly of Vir- 
ginia. He was elected a member of that body in the 
spring of 1782, and in the autumn a member of the 
Executive Council. He knew what hardships the 
army had endured ; he had partaken their sufferings, 
and ' my immediate entrance into the State Legisla- 
ture,' said he in the letter from which the preceding 
extract is taken, ' opened to my view the causes which 
had been chiefly instrumental in au2;mentin"; those suf- 
ferings; and the general tendency of State politics con- 
vinced me, that no safe and permanent remedy could 
be found, but in a more efficient and better organized 
General Government.'^ 

At this time, the Federal treasury was destitute of 
money, and the army without pay, provisions or cloth- 
mg. The non-compliance of the States with the requi- 
sitions of Congress threatened the most disastrous con- 

' Story's Discourse on the Life, &c., of John Marshall. * Ibid. 



44 LIFE OF JOHN MARSHALL. 

sequences. We have seen, in the Life of Rutledge, 
that that body sent a deputation to the Eastern and 
Southern States, to explain the condition of public 
afiairs, and the danger to which the country was ex- 
posed by the delinquency of the several members of 
the Confederacy. Rutledge and Clymer, who were 
deputed to visit the Southern States, were permitted 
to make a personal address to the Virginia Assembly.^ 
Of this Assembly Marshall was a member; and a 
steady advocate of all measures that tended to 
strengthen the Federal authority, and enable it to 
perform its obligations to the army, and the public 
creditors. His vindications of the claims of the army 
upon the country were constant and earnest, and 
awakened their gratitude. But so feeble was the 
Confederacy, and so languid and exhausted the 
States, that he clearly perceived the impossibility of 
reviving the public spirit, and restoring the public 
credit, without the establishment of a more vigorous 
and comprehensive system of government. This was 
the leading idea of his scheme of politics. 

On the 3d of January, 1783, he was married to Mary 
Willis Ambler, a daughter of Jacqueline Ambler, then 
Treasurer of Virginia. He had become attached to 
this lady before he left the army; an attachment 
which continued with unabated fervor to the end of 
his days. She died several years before him ; 

but he cherished her memory with unaffected tender- 
ness, and in his will described her as a sainted spirit 
that had fled from the sufferings of life. 

About the time of his marriage, he fixed his resi- 
dence in Richmond. Desirous of devoting himself 
more closely to his profession, he resigned his seat in 

' On the 14th of June, 1782. 



MEMBER OF VIRGINIA LEGISLATURE. 45 

the Executive Council. But he was not permitted 
thus to withdraw from public life. His old friends, 
neighbors, and former constituents of Fauquier County, 
immediately after his resignation, namely, in the spring 
of 1784, again elected him a member of the Assembly. 
Three years later, Henrico, his adopted county, paid 
him the same tribute of respect. 

At the time of this last election, the affairs of the 
United States were fast sinkinii; into utter disorder and 
confusion. Reflecting minds beheld the progress of 
events with the most gloomy forebodings. They saw 
that immediate and effectual reform alone could arrest 
the downward tendency of things. To accomplish that 
object they now earnestly addressed themselves. Shall 
the arm of the Federal Government be strengthened ; 
shall it be invested with larger and more effectual 
powers over the commerce, the money, the foreign 
and mutual relations of the States; shall it have a 
revenue independent of them, and authority to carry 
into effect its measures without their instrumentality? 
These were the questions that now awakened and agi- 
tated the public mind. Marshall's judgment, reflec- 
tion, and experience, alike concurred in giving them 
an affirmative answer. But in all the States, and par- 
ticularly in Virginia, there was a party who were actu- 
ated by an extreme jealousy of national sovereignty. 
Although it was notorious that the Articles of Con- 
federation had proved totally inadequate to all the 
purposes of a government, they insisted that, with 
some slight modifications, they conferred on the cen- 
tral authority all the power with which it was either 
prudent or safe to invest it. Rather than give it 
more, they would risk a dissolution of the Union; 
believing that a consolidated government was more 



46 LIFE OF JOHN MARSHALL. 

to be dreaded, than the possible separation of the 
States.^ 

Against notions like these, Marshall earnestly pro- 
tested. He believed that the salvation of his country 
depended on the prevalence of more enlarged views, 
and more solid principles. In the Assembly, in popu- 
lar meetings, he maintained the necessity of a more 
vigorous scheme of government, not only to preserve 
the Union, but to insure its benefits. The doctrines 
he now advocated formed the basis of his political 
creed through life. He adhered to them when they 
were in the ascendant, and after they had fallen into 
disfavor. From first to last, he was a Federalist. 

* Among innumerable false, unmoVd, 
Unshaken, unseduc'd, unterrified; 
His loyalty he kept, his love, his zeal.* 

He hailed the call of the Federal Convention as an 
auspicious event; and, without hesitation, vindicated 
the result of its labors. 

' Judge Story has said that ' the question, whether the Union 
ought to be continued, or dissolved by a total separation of the States, 
was freely discussed,' in the halls of the Virginia Legislature ; * and 
either side of it was maintained, not only without reproach, but with 
an uncompromising fearlessness of consequences.' Discourse on Mar- 
shall, p. 25. In this the learned Judge is, probably, in error. There 
were in Virginia, as in every other State, enemies of the Union ; but 
they were not to be found, we apprehend, among her public men. 
Many of these, indeed, protested against conferring on the General 
Government what they considered dangerous powers ; but they pro- 
fessed great attachment to the Union of the States. Said George 
Mason in the Virginia Convention, * I have never, in my whole life, 
heard one single man deny the necessity and propriety of tlie Union.' 
And Governor Randolph, on the same occasion, spoke of a dissolu- 
tion of the Union, as that deplorable thing ' which no man yet haa 
dared openly to advocate.' 



MEMBER OF VIRGINIA LEGISLATURE. 47 

*In the course of the session of 1788/ he says, Hhe 
increasing efforts of the enemies of the Constitution 
made a deep impression ; and before its close, a great 
majority showed a decided hostility to it. I took an 
active part in the debates on this question, and was 
uniform in support of the proposed Constitution.* 

With these sentiments, he was elected a member of 
the Virginia Convention, and in the next chapter we 
Bhall see the part he took in its deliberations. 



CHAPTER VI. 

1788. 
MEMBER OF THE VIRGINIA CONVENTIQI*. 

Personally, Marshall was the most popular of men. 
His serene and joyous temper, his kind and generous 
heart, his exemption from pride and affectation, his 
moderation, candor, and integrity, attracted and fixed 
the regards of men. Though party spirit might 
run high, and the principles he espoused be little in 
favor, he never failed, when a candidate, to secure his 
election. A conspicuous instance of this personal 
weight and influence was his election as a member of 
the Virginia Convention, which met to decide on the 
ratification of the Federal Constitution. The current 
of opinion had set strongly against that instrument 
throughout Virginia. A majority of the voters of Hen- 
rico County were supposed to be hostile to it. Never 
theless, Marshall, with his well-known opinions, cam»r' 
forward as a candidate for the Convention. 

* The questions,' he said afterwards, * which wei d 
perpetually recurring in the State Legislatures ; an I 
which brought annually into doubt principles whica 
I thought most sacred; which proved, that everything 
was afloat, and that we had no safe anchorage ground ; 
gave a high value, in my estimation, to that article in 
the Constitution which imposes restrictions on the 

48 



MEMBER OF VIRGINIA CONVENTION. 49 

Stales. I was, consequently, a determined advocate 
for its adoption, and became a candidate for the Con- 
vention.'^ His opinions constituted the only obstacle 
to his election ; and the determined effort that was 
made, on that ground, to defeat him, signally failed. 
'Parties,' as he subsequently said, 'had not yet be- 
come so bitter as to extinguish the private affections;' 
and he was elected by a considerable majorit3\ 

The Convention assembled at Richmond on the 2d 
day of June, 1788. It was composed of the best abili- 
ties of Virginia. The fame of the speakers, and the 
magnitude of the question that was to engage their 
powers, created a vast expectation. 

* Industry deserted its pursuits, and even dissipa- 
tion gave up its objects, for the superior enjoyments 
which were presented by the hall of the Convention. 
Not only the people of the town and neighborhood, 
but gentlemen from every quarter of the State, were 
seen thronging to the metropolis, and speeding their 
eager way to the building in which the Convention 
held its meetings. Day after day, from morning till 
night, the galleries of the house were continually filled 
with an anxious crowd, who forgot the inconvenience 
of their situation in the excess of their enjoyment; and 
far from giving any interruption to the course of the 
debate, increased its interest and solemnity by their 
silence and attention. No bustle, no motion, no sound, 
was heard among them, save only a slight movement, 
when some new speaker arose, whom they were all 
eager to see as well as to hear; or when some master- 
stroke of eloquence shot thrilling along their nerves, 
and extorted an involuntary and inarticulate murmur. 

' Story's Discourse, p. 28. 



60 LIFE OF JOHN MARSHALL. 

Day after day was this banquet of the mind and of 
the heart spread before them, with a delicacy and va- 
riety which could never cloy.' * 

Conspicuous among those who opposed the ratifica- 
tion of the Constitution were Patrick Henry, George 
Mason, and William Grayson ; a combination of elo- 
quence, vigor, and genius, not often surpassed, and sel- 
dom equalled. Foremost among those who supported 
it were James Madison and Edmund Randolph. On 
the same side were arrayed, among other distinguished 
names, the venerable Edmund Pendleton, who presided 
over the deliberations of the Convention; James Innis, 
the Attorney-General of Virginia, a gentleman of 
great eloquence, "^ eloquence,' said Patrick Henry, 
^splendid, magnificent, and sufficient to shake the hu- 
man mind,' George and William Nicholas, and John 
Marshall. 

The after-acquired renown of the latter gives a sort 
of retroactive interest to his efforts on this occasion ; 
but, even disconnected with his subsequent career, 
they will be found to possess sufficient merit to fore- 
show great reputation as a debater. That perfect ex- 
emption from needless incumbrance of matter or orna- 
ment, which has been pointed out as characteristic of 
all his intellectual displays, and as the effect, in some 
degree, of an aversion to the labor of thinking, is 
equally evinced in the speeches we are about to lay 
before the reader. We could wish, at the same time, 
to give him an accurate idea of the speaker's manner 
in public debate. That manner was peculiar, but 
effective. In nothing, perhaps, did it emulate the un- 
rivalled oratorical qualities of Patrick Henry. Indeed, 

' Life of Patrick Henry, p. 293. 



MEMBER OF VIRGINIA CONVENTION. 51 

a greater contrast could hardly be conceived than be- 
tween these two men. The one had passion, fire, im- 
petuosity, and, as shown by these debates, vigorous 
conceptions and clear ideas. The other depended on 
reason alone, and yet, when in full career, held the 
attention of his audience with as firm a grasp as his 
more eloquent opponent. His exordium, however, 
was little calculated to create expectation, or awaken 
sympathy. 

' So great a mind, perhaps, like large bodies in the 
physical world, is with difiiculty set in motion. That 
this is the case with Mr. Marshall's is manifest, from 
his mode of entering on an argument, both in conver- 
sation and in public debate. It is difficult to rouse 
his faculties : he begins with reluctance, hesitation, 
and vacancy of eye : presently, his articulation be- 
comes less broken, his eye more fixed, until, finally, 
his voice is full, clear, and rapid, his manner bold, and 
his whole face lighted up with the mingled fires of 
genius and passion : and he pours forth the unbroken 
stream of eloquence in a current deep, majestic, 
smooth, and strong. He reminds one of some great 
bird, which flounders and flounces on the earth for 
awhile, before it acquires imjaeius to sustain its soar- 
ing flight." 

Marshall's first speech in the Convention was on 
the power of taxation ; but as the debate had been 
discursive, he did not confine his attention exclusively 
to that topic, and replied to many of the objections 

' ' Sketches and Essays of Public Characters,' by Francis W. Gil- 
mer. 



i* 



52 LIFE OF JOHN MARSHALL. 

that had been urged against the Constitution as a 
whole. 

* I conceive,' said he, * that the object of the discus- 
sion now before us is, whether democracy or despotism 
be most eligible. I am sure that those who framed the 
system submitted to our investigation, and those who 
now support it, intend the establishment and security 
of the former. The supporters of the Constitution 
claim the title of being firm friends of the liberty and 
the rights of mankind. They say that they consider 
it as the best means of protecting liberty. We, Sir, 
idolize democracy. Those who oppose it have bestowed 
eulogiums on monarchy. We prefer this system to 
any monarchy, because we are convinced that it has a 
greater tendency to secure our liberty, and promote 
our happiness. We admire it, because we think it a 
well-regulated democracy. It is recommended to the 
good people of this country'; they are, through us, to 
declare whether it be such a plan of government as 
will establish and secure their freedom. 

' Permit me to attend to what the honorable gentle- 
man [Patrick Henry] has said. He has expatiated 
on the necessity of a due attention to certain maxims; 
to certain fundamental principles, from which a free 
people ought never to depart. I concur with him in 
the propriety of the observance of such maxims. They 
are necessary in any government, but more essential 
to a democracy than to any other. What are the fa- 
vorite maxims of democracy? A strict observance of 
justice and public faith, and a steady adherence to vir- 
tue. These, Sir, are the principles of a good govern- 
ment. No mischief, no misfortune, ought to deter us 
from a strict observance of justice and public faith. 
Would to Heaven that these principles had been ob- 



MEMBER OF VIRGINIA CONVENTION. 53 

served under the present government ! Had this been 
the case, the friends of liberty would not be so willing 
now to part with it. Can we boast that our govern- 
ment is founded on these maxims? Can we pretend 
to the enjoyment of political freedom or security, when 
we are told that a man has been, by an Act of Assem- 
bly, struck out of existence without a trial by jury, 
without examination, without being confronted with 
his accusers and witnesses, without the benefits of the 
law of the land ? Where is our safety, when we are 
told that this act was justifiable, because the person 
was not a Socrates ? What has become of the worthy 
member's maxims? Is this one of them? Shall it be 
a maxim, that a man shall be deprived of his life 
without the benefit of law ? Shall such a deprivation 
of life be justified by answering, that the man's life 
was not taken secundum o,rtem because he was a bad 
man ? ^ Shall it be a maxim, that government ought 
not to be empowered to protect virtue ? ' 

' Marshall here refers to the case of Josiah Phillips, which had 
been adduced by Governor Randolph as an instance of gross depar- 
ture from national principles, as well as a violation of the Constitution 
of Virginia. The facts of the case were thus stated by Randolph : — 
' From mere reliance on general reports, a gentleman in the House of 
Delegates informed the House, that a certain man (Phillips) had com- 
mitted several crimes, and was running at large, perpetrating other 
crimes. He, therefore, moved for leave to attaint him j he obtained 
that leave instantly ; no sooner did he obtain it, than he drew from 
his pocket a bill ready written for that effect; it was read three times 
in one day, and carried to the Senate. I will not say that it passed 
the same day through the Senate; but he was attainted very speedily 
and precipitately, without any proof better than vague reports. With- 
out being confronted with his accusers and witnesses, without the 
privilege of calling for evidence in his behalf, he was sentenced to 
death, and was afterwards actually executed. Was this arbitrary de- 
privation of life, the dearest gift of God to man, consistent with the 
genius of a republican government? Is this compatible with the 



54 LIFE OF JOHN MARSHALL. 

' He says, we wish to have a strong, energetic, pow- 
erful government. We contend for a well-regulated 
democracy. He insinuates that the power of the gov- 
ernment has been enlarged by the Convention, and 
that we may apprehend it will be enlarged by others. 
The Convention did not, in fact, assume any power. 

spirit of freedom ? This, Sir, has made the deepest impression on 
my heart, and I cannot contemplate it without horror,' — Elliott's 
Debates, vol. iii., p. 66. 

Patrick Henry thus replied : — ' The honorable gentleman haa 
given you an elaborate account of what he judges tyrannical legisla- 
tion, and an ex post facto law, in the case of Josiah Phillips. He 
has misrepresented the facts. That man was not executed by a tyran 
nical stroke of power. Nor was he a Socrates. He was a fugitive 
murderer, and an outlaw ; a man who commanded an infamous ban- 
ditti, and at a time when the war was at the most perilous stage. He 
committed the most cruel and shocking barbarities. He was an enemy 
to the human name. Those who declare war against the human race 
may be struck out of existence as soon as they are apprehended. He 
was not executed according to those beautiful legal ceremonies which 
are pointed out by the laws in criminal cases. The enormity of his 
crimes did not entitle him to it. I am truly a friend to legal forms 
and methods ; but, Sir, in this case the occasion warranted the mea- 
sure. A pirate, an outlaw, or a common enemy to all mankind, may 
be put to death at any time. It is justified by the laws of nature and 
nations.' — Ibid., p. 140. 

When this act of attainder passed, Henry was the Governor of Vir- 
ginia, and Jefferson a member of the Assembly. Randolph, who had 
been hard pressed by Henry in debate, and arraigned for inconsis- 
tency in now supporting the Constitution, when, as a member of the 
Federal Convention, he had refused to sign it, brought forward the 
case of Phillips as a means of retaliation. But Jefferson says that 
Phillips was not executed under the act of attainder ; that he was in- 
dicted at common law for either robbery or murder^ was regularly 
tried, convicted, and executed. No use, he says, was ever made of 
the act of attainder. Grovernor Randolph acted for the Common- 
wealth in the prosecution ; he being, at that time, Attorney-Greneral. 
Jefferson supposes that there must have been some mistake in the' 
report of Randolph's statement of the case in the Convention, as well 
ae in Henry's reply. — ISee Jefferson's Works, vol. vi., pp 369, 440. 



MEMBER OF VIRGINIA CONVENTION. 5o 

They have proposed to our consideration a scheme of 
government which they thought advisable. We are 
not bound to adopt it, if we disapprove of it. Had not 
every individual in this community a right to tender 
that scheme which he thought most conducive to the 
welfare of his country ? Have not several gentlemen 
already demonstrated that the Convention did not ex- 
ceed their powers? But the Congress have the power 
of making bad laws, it seems. The Senate, with the 
President, he informs us, may make a treaty which 
shall be disadvantageous to us ; and that, if they be 
not good men, it will not be a good Constitution. I 
shall ask the worthy member only, if the people at 
large, and they alone, ought to make laws and treaties? 
Has any man this in contemplation ? You cannot ex- 
ercise the powers of government personally yourselves. 
You must trust to agents. If so, will you dispute 
giving them the power of acting for you, from an ex- 
isting possibility that they may abuse it ? As long as 
it is impossible for you to transact your business in 
person, if you repose no confidence in delegates, be- 
cause there is a possibility of their abusing it, you can 
have no government ; for the power of doing good is 
inseparable from that of doing some evil.' 

* Let me pay attention to the observation of the gen- 
tleman who was last up [Mr. Monroe], that the power 
of taxation ought not to be given to Congress. This 
subject requires the undivided attention of this House. 
This power I think essentially necessary ; for, without 
it, there will be no efficiency in the government. We 
have had a sufficient demonstration of the vanity of 
depending on requisitions. How, then, can the Gene- 
ral Government exist without this power? The possi- 
bility of its being abused is urged as an argument 
against its expediency. To very little purpose did 



56 LIFE OF JOHN MARSHALL 

Virginia discover the defects in the old system ; to 
little purpose, indeed, did she propose improvements; 
and to no purpose is this plan constructed for the pro- 
motion of our happiness, if we refuse it now, because 
it is possible it may be abused. The Confederation 
has nominal powers, but no means to carry them into 
effect. If a system of government were devised by 
more than human intelligence, it would not be effec- 
tual if the means were not adequate to the power. All 
delegated powers are liable to be abused. Arguments 
drawn from this source go in direct opposition to the 
government, and in recommendation of anarchy. The 
friends of the Constitution are as tenacious of liberty 
as its enemies. They wish to give no power that will 
endanger it. They wish to give the government powers 
to secure and protect it. Our inquiry here must be, 
whether the power of taxation be necessary to perform 
the objects of the Constitution, and whether it be safe, 
and as well guarded as human wisdom can do it^ 
What are the objects of the national government ? To 
protect the United States, and to promote the general 
welf^ire. Protection, in time of war, is one of its prin- 
cipal objects. Until mankind shall cease to have am- 
bition and avarice, wars will arise.' 

' There must be men and money to protect us. 
How are armies to be raised? Must we not have 
money for that purpose? But the honorable gentle- 
man says that we need not be afraid of war. Look at 
history, which has been so often quoted. Look at the 
great volume of human nature. They will foretell you 
that a defenceless country cannot be secure. The na- 
ture of man forbids us to conclude that we are in no 
danger from war. The passions of men stimulate them 
to avail themselves of the weakness of others. The 
Powers of Europe are jealous of us. It is our interest 



MEMBER OF VIRGINIA CONVENTION. 57 

to watch their conduct, and guard against them. They 
must be pleased with our disunion. If we invite them, 
by our weakness, to attack us, will they not do it ? If 
we add debility to our present situation, a partition of 
America may take place. It is, then, necessary to 
give the government that power, in time of peace, 
which the necessity of war will render indispensable, 
or else we shall be attacked unprepared. The expe- 
rience of the world, a knowledge of human nature, 
and our own particular experience, will confirm this 
truth. When danger shall come upon us, may we not 
do what we were on the point of doing once already ; 
that is, appoint a dictator We may now regu- 
late and frame a plan that will enable us to repel 
attacks, and render a recurrence to dangerous expe- 
dients unnecessary. If we be prepared to defend our- 
selves, there will be little inducement to attack us. 
But, if we defer giving the necessary power to the Gene- 
ral Government till the moment of danger arrives, we 
shall give it then, and with an uTisjpariiig hand.' 

' I defy you to produce a single instance where re- 
quisitions on several individual States, composing a 
Confederacy, have been honestly complied with. Did 
gentlemen expect to see such punctuality complied 
with in America? If they did, our own experience 
shows the contrary.' ' A bare sense of duty, or a re- 
gard to propriety, is too feeble to induce men to com- 
ply with obligations. We deceive ourselves, if we ex- 
pect any efficacy from these. If requisitions will not 
avail, the government must have the sinews of war 
some other way. Requisitions cannot be effectual. 
They will be productive of delay, and will ultimately 
be inefficient. By direct taxation, the necessities of 
the government will be supplied in a peaceable man- 
ner, without irritating the minds of the peoole. But 



58 LIFE OF JOHN MARSHALL. 

requisitions cannot be rendered efficient without a civil 
war; without great expense of money, and the blood 
of our citizens.' 

* Is the system so organized as to make taxation 
dangerous ? . . . I conceive its organization to be suffi- 
ciently satisfactory to the warmest friend of freedom. 
No tax can be laid without the consent of the House 
of Representatives. If there be no impropriety in the 
mode of electing the Representative, can any danger 
be apprehended ? They are elected by those who can 
elect Representatives in the State Legislature. How 
can the votes of the electors be influenced ? By no- 
thing but the character and conduct of the men they 
vote for.' ' If they are to be chosen for their wis- 
dom, virtue and integrity, what inducement have they 
to infringe on our freedom? We are told that they 
may abuse their power. Are there strong motives to 
prompt them to abuse it ? Will not such abuse mili- 
tate against their own interest ? Will not they, and 
their friends, feel the effects of iniquitous measures ? 
Does the Representative remain in office for life? Does 
he transmit his title of Representative to his son ? Is 
he secured from the burden imposed on the commu- 
nity ? To procure their re-election, it will be neces- 
sary for them to confer with the people at large, and 
convince them that the taxes laid are for their good. 
If I am able to judge on the subject, the power of tax- 
ation now before us is wisely conceded, and the Repre- 
sentatives wisely elected.' 

' The extent of the country is urged as another ob- 
jection, as being too great for a republican govern- 
ment. This objection has been handed from author 
to author, and has been certainly misunderstood and 
misapplied. To what does it owe its source ? To ob- 
servations and criticisms on governments, where repre- 



MEMBER OF VIRGINIA C0N7EJNTI0N. 59 

sentation did not exist. As to the legislative power, 
was it ever supposed inadequate to any extent? Ex- 
tent of country may render it difficult to execute the 
laws, but not to legislate. Extent of country does not 
extend the power. What will be sufficiently energetic 
and operative in a small territory, will be feeble when 
extended over a wide-extended country. The gentle- 
man tells us there are no checks in this plan. What 
has become of his enthusiastic eulogium on the Ame- 
rican spirit. We should find a check and control, 
when oppressed, from that source. In this country, 
there is no exclusive personal stock of interest. The 
interest of the community is blended and inseparably 
connected with that of the individual. When he pro- 
motes his own, he promotes that of the community. 
When we consult the common good, we consult our 
own. When he desires such checks as these, he will 
find them abundantly here. They are the best checks. 
What has become of his eulogium on the Virginia 
Constitution ? Do the checks in this plan appear less 
excellent than those of the Constitution of Virginia ? 
If the checks in the Constitution be compared to the 
checks in the Virginia Constitution, he will find the 
best security in the former.' 

' The worthy member [Patrick Henry] has con- 
cluded his observations by many eulogiums on the 
British Constitution. It matters not to us whether it 
be a wise one or not. I think that, for America at 
least, the government on your table is very much supe- 
rior to it. I ask you, if your House of Representatives 
would be better than it is, if a hundredth part of the 
people were to elect a majority of them, if your Sena- 
tors were for life, would they be more agreeable to 
you ? If your President were not accountable to you 
for his conduct — if it were a constitutional maxim, 



60 LIFE OF JOHN MARSHALL. 

that he could do no wrong — would you be safer than 
you are now ? If you can answer, Yes, to these ques- 
tions, then adopt the British Constitution. If not, 
then, good as that government may be, this is better. 
' The worthy gentleman who was last up [Monroe], 
saxd the confederacies of ancient and modern times 
were not similar to ours, and that, consequently, rea- 
sons which applied against them could not be urged 
against it. Do they not hold out one lesson very use- 
ful to us ? However unlike in other respects, they re- 
semble it in its total inefficacy. They warn us to shun 
their calamities, and place in our government those 
necessary powers, the want of which destroyed them. 
I hope we shall avail ourselves of their misfortunes, 
without experiencing them. There was something 
peculiar in one observation he made. He said that 
those who governed the cantons of Switzerland were 
purchased by foreign powers, which was the cause of 
their uneasiness and trouble. How does this apply to 
us ? If we adopt such a government as theirs, will it 
not be subject to the same inconvenience ? Will not 
the same caus-^ produce the same effect ? What shall 
protect us from it ? What is our security ? He then 
proceeded to say, the causes of war are removed from 
us ; that we are separated by the sea from the powers 
of Europe, and need not be alarmed. Sir, the sea 
makes them neighbors to us. Though an immense 
ocean divides us, we may speedily see them with us. 
What dangers may we not apprehend to our com- 
merce ? Does not our naval weakness invite an attack 
on our commerce ? May not the Algerines seize our 
vessels ? Cannot they, and every other predatory or 
maritime nation, piUage our ships, and destroy our 
commerce, without subjecting themselves to any in- 
convenience ? He would, he said, give the General Gov- 



MEMBER OF VIRGINIA CONVENTION. 61 

ernment all necessary powers. If anything be nece •- 
sary, it must be so to call forth the strength of the 
Union when we may be attacked, or when the general 
purposes of America require it. The worthy gentle- 
man then proceeded to show, that our present exigen- 
cies are greater than they ever will be again. Who 
can penetrate into futurity ? How can any man pre- 
tend to say that our future exigencies will be less than 
our present? The exigencies of nations have been 
generally commensurate to their resources. It would 
be the utmost impolicy to trust to a mere possibility 
of not Ixiing attacked, or obliged to exert the strength 
of the community.' 

'He then told you that your continental government 
will call forth the virtue and talents of America. This 
being the case, will they encroach on the power of the 
State governments? Will our most virtuous and able 
citizens wantonly attempt to destroy the liberty of the 
people? Will the most virtuous act the most wickedly? 
I differ in opinion from, the worthy gentleman. I think 
the virtue and talents of the members of the Generfil 
Government will tend to the security, instead of the 
destruction, of our liberty. I think that the power of 
direct taxation is essential to the existence of the 
General Government, and that it is safe to grant it. 
If this power be not necessary, and as safe from abuse 
as any delegated power can possibly be, then, T say 
that the plan before you is unnecessary; for it im- 
ports not what system we have, unless it have the 
power of protecting us in time of peace and war.' 

Marshall next addressed the Convention in support 
of that clause of the Constitution which gives Congress 
power to provide for arming, organizing, and disci- 
plining the militia, and governing those in the actual 



62 LIFE OF JOHN MARSHALL. 

Bervice of the Union. It had been attacked by Patrick 
Henry as a very alarming power. He declared that, 
as the clause expressly vested the General Government 
with power to call out the militia to suppress insurrec- 
tions, &c., it appeared to him, most decidedly, that the 
power of suppressing insurrections was exclusively given 
to Congress. If it remained in the States, it was by 
implication. 

Marshall asked, in reply, if gentlemen were serious 
•when they asserted that, if the State governments had 
power to interfere with the militia, it was by implica- 
tion. ' If they were, he asked the Committee whether 
the least attention would not show that they were mis- 
taken. The State governments did not derive their 
powers from the General Government ; but each g jv- 
ornment derived its powers from the people, and each 
was to act according to the powers given to it. Would 
any gentleman deny this ? He demanded if powers 
not given were retained by implication. Could any 
man say so ? Could any man say that this power was 
not retained by the States, as they had not given it 
away? For, says he, doee not a power remain until it 
is given away ? The State Legislatures had power to 
command and govern their militia before, and have it 
still, undeniably, unless there be something in this 
Constitution that takes it away.' 'The truth is, that 
when power is given to the General Legislature, if it 
was in the State Legislature before, both shall exer- 
cise it ; unless there be an incompatibility in the exer- 
cise by one to that by the other, or negative words 
precluding the State governments from it. But there 
are no negative words here. It rests, therefore, with 
the States. To me it appears^ then, unquestionable 
that the State governments can call forth the militia, 
in case the Constitution should be adopted, in the 



MEMBER OF VIRGINIA CONVENTION. 63 

sa^ne ma.nner as they would have done before its 
adoption. 

' When the government is drawn from the people, 
and depending on the people for its continuance, 'op- 
pressive measures will not be attempted, as they will 
certainly draw on their authors the resentment of those 
on whom they depend. On this government, thus de- 
pending on ourselves for its existence, I will rest my 
safety, notwithstanding the danger depicted by the 
honorable gentleman. I cannot help being surprised 
th-^t the worthy member thought this power so dan- 
gerous. What government is able to protect you in 
time of war ? Will any State depend on its own exer- 
tions ? The consequence of such dependence, and with- 
holding this power from Congress, will be, that State 
will fall after State, and be a sacrifice to the want of 
power in the General Government. United we are 
strong, divided we fall. Will you preveut the General 
Government from drawing the militia of one State to 
another, when the consequence would be, that every 
State must depend on itself? The enemy, possessing 
the water, can quickly go from one State to another. 
No State will spare to another its militia, which it 
conceives necessary for itself It requires a superin- 
tending power in order to call forth the resources of 
all to protect all. If this be not done, each State will 
fall a sacrifice. This system merits the highest ap- 
plause in this respect. The honorable gentleman said 
that a general regulation may be made to inflict pun- 
ishments. Does he imagine that a militia law is to be 
ingrafted on the scheme of government, so as to render 
it incapable of being changed ? The idea of the worthy 
member supposes that men renounce their own in- 
terests. This w^ould produce general inconveniences 
throughout the Union, and would be equally opposed 



64 LIFE OF JOHN MARSHALL. 

by all the States. But the worthy member fears, that 
in one part of the Union they will be regulat«jd arid 
disciplined, and in another neglected. This danger is 
enhanced by leaving this power to each State ; for 
some States may attend to their militia, and others 
may neglect them. If Congress neglect our militia, 
we can arm them ourselves. Cannot Virginia import 
arms ? Cannot she put them into the hands of her 
militia men ?' 

The judicial power bestowed on the General Gov- 
ernment by the Constitution, was denounced by the 
opponents of that instrument with great earnestness. It 
was said that its exercise might destroy the dearest 
rights of the community; that the effect and operation 
of the Federal Courts would go to the destruction of 
the State governments. To arguments like these, and 
of a similar strain, Marshall thus replied : — 

' Mr. Chairman, this part of the plan before us is a 
great improvement on that instrument from which we 
are now departing. Here are tribunals appointed for 
the decision of controversies, which were before either 
not at all, or improperly, provided for. That many 
benefits will result from this to the members of the col- 
lective society, every one confesses. Unless its organi- 
zation be defective, and so constructed as to injure, in- 
stead of accommodating, the convenience of the people, 
it merits our approbation. After such a candid and 
fair discussion by those gentlemen who support it — 
after the very able manner in which they have inves- 
tigated and examined it — I conceived it would be no 
longer considered as so very defective, and that those 
who opposed it would be convinced of the impropriety 
of some of their objections. But I perceive that they 



MEMBER OF VIRGINIA CONVENTION. 65 

still continue the same opposition. Gentlemen have gone 
on an idea that the Federal Courts will not determine 
the causes which may come before them, with the same 
fairness and impartiality with which other Courts de- 
cide. What are the reasons of this supposition ? Do 
they draw them from the manner in which the judges 
are chosen, or the tenure of their office ? What is it 
that makes us trust our judges? Their independence 
in office, and manner of appointment. Are not the 
judges of the Federal Court chosen with as much wis- 
dom as the judges of the State governments? Are 
they not equally, if not more independent ? If so, shall 
we not conclude that they will decide with equal im- 
partiality and candor? If there be as much wisdom 
and knowledge in the United States as in a particular 
State, shall we conclude that that wisdom and knowl- 
edge will not be equally exercised in the selection of 
judges?' 

' With respect to its cognizance [the cognizance of the 
Federal judiciary] in all cases arising under the Con- 
stitution and the laws of the United States, he [George 
Mason] says that the laws of the United States being 
paramount to the laws of the particular State, there is 
no case, but what this will extend to. Has the Govern- 
ment of the United States power to make laws on 
every subject ? Does he understand it so ? Can they 
make laws affecting the mode of transferring property, 
or contracts, or claims, between citizens of the same 
State ? Can they go beyond the delegated powers ? 
If tliey were to make a law not warranted by any of 
the powers enumerated, it would be considered by the 
judges as an infringement of the Constitution which 
they are to guard. They would not consider such a 
law as coming under their jurisdiction. They would 
declrre it void.' 
5 



66 LIFE OF JOHN MARSHALL. 

' How disgraceful is it, that the State Courts cannot 
be trusted, says the honorable gentleman. What is 
the language of the Constitution ? Does it take away 
their jurisdiction ? Is it not necessary that the Fede- 
ral Courts should have cognizance of cases arising 
under the Constitution and the laws of the United 
States? What is the service or purpose of a judiciary, 
but to execute the laws in a peaceable, orderly man- 
ner, without shedding blood, or creating a contest, or 
availing yourselves of force? If this be the case, 
where can its jurisdiction be more necessary than 
here ?' 

' With respect to disputes between a State, and the 
citizens of another State, its jurisdiction has been de- 
cried with unusual vehemence. I hope that no gen- 
tleman will think that a State will be called at the bar 
of the Federal Court.' Is there no such case at pre- 
sent ? Are there not many cases in which the Legis- 
lature of Virginia is a party, and yet the State is not 
sued ? It is not rational to suppose that the sovereign 
power should be dragged before a court. The intent 
is, to enable States to recover claims of individuals 
residing in other States. I contend that this construc- 
tion is warranted by the words ; but, say they, there 
will be partiality in it, if a State cannot be defendant 
— if an individual cannot proceed to obtain judgment 
against a State, though he may be sued by a State. It 
is necessary to be so, and cannot be avoided. I see a 
difficulty in making a State defendant, which does not 
prevent its being plaintiff. If this be only what can- 
not be avoided, why object to the system on that 

' This, however, was actually done in the case of Chisholm v. Geor- 
gia. The decision of the Court in that case led to an amendment of 
the Constitution, forbidding such an exercise of authority. 



MEMBER OF VIRGINIA CONVENTION. 67 

account? If an individual has a just claim against 
any particular State, is it to be presumed that, on ap- 
plication, he will not obtain satisfaction? But lio^w 
could a State recover any claim from a citizen of 
another State, without the establishment of these tri- 
bunals ? 

' The honorable member objects to suits being insti- 
tuted in the Federal Courts, by the citizens of one 
State, against the citizens of another State. Were I 
to contend that this was necessary in all cases, and 
that the government, without it, would be defective, 
I should not use my own judgment. But are not the 
objections to it carried too far ? Though it may not, 
in general, be absolutely necessary, a case may hap- 
pen, as has been observed, in which a citizen of one 
State ought to be able to recur to this tribunal, to re* 
cover a claim from the citizen of another State. What 
is the evil which this can produce ? Will he get more 
than justice there? The independence of the judges 
forbids it. What has he to get? Justice. Shall we 
object to this, because the citizen of another State can 
obtain justice without applying to our State Courts? 
It may be necessary, with respect to the laws and re- 
gulations of commerce, which Congress may make. It 
may be necessary in cases of debt, and some other con- 
troversies. In claims for land, it is not necessary, but 
it is not dangerous. In the Court of which State will 
it be instituted ? said the honorable gentleman. It 
will be instituted in the Court of the State where the 
defendant resides, where the law can come at him, 
and no where else. By the laws of which State will 
it be determined ? said he. By the laws of the State 
where the contract was made. According to those 
laws, and those only, can it be decided. Is this a 
novelty ? No ; it is a principle in the jurisprudence 



68 LIFE OF JOHN MARSHALL. 

of this Commonwealth, If a man contracted a debt 
in the East Indies, and it was sued for here, the 
decision must be consonant to the laws of that coun- 
try/ 

Such was the line of argument adopted by Marshall 
in support of the Federal Constitution. His speeches 
were evidently not premeditated ; but made on the 
spur of the occasion, and in reply to objections brought 
forward by his opponents. If not as comprehensive 
in their scope as the speeches of Madison, they were, 
nevertheless, vigorous, pointed, and adapted to the 
end he had in view. They were, chiefly, in answer 
to the arguments of Patrick Henry and George Mason. 
How they were estimated by the former may be in- 
ferred from his brief, but generous eulogium. 'I have,' 
said he, ' the highest veneration and respect for the 
honorable gentleman, and I have experienced his can- 
dor on all occasions.' 

After an earne^st debate of twenty-five days, a de- 
bate illustrated by an extraordinary display of elo- 
quence and ability, the Convention accepted the Con- 
stitution by a majority of ten votes.. The result, it has 
been thought, would have been difierent, had not the 
news arrived, while the Convention was yet in ses- 
sion, that nine States had already given their voice in 
its favor, f<nd thus insured its success. 

The Constitution adopted, we shall see, in the fol- 
lowing chapters, that Marshall gave an earnest sup- 
port to the government organized in accordance with 
its provisions, and to the principles on which that gov- 
ernment was conducted by the Administrations of 
Washington and Adams. 



CHAPTER VII. 

1788-1797. 
MEMBER OF THE VIRGINIA LEGISLATURE. 

The high ppofessional reputation to which Marshall 
had attained, seemed naturally to invite an exclusive 
devotion of his talents to the labors of the Bar. A 
narrow fortune and growing family were impelling mo- 
tives to that line of conduct. Accordingly, he now 
determined to relinquish public life, and adhere, for 
the future, to his profession. But the opposition the 
Constitution had already encountered in Virginia, and 
the hostility that still existed against that instrument, 
indicated that the government which was now to be 
organized in pursuance of its provisions, would be 
likely to meet with very lukewarm support from the 
State Legislature, if the anti-Federalists should secure 
an ascendency in that body. It was, therefore, the 
obvious policy of the Federalists to effect, if possible, 
a different result; under such circumstances Marshall 
was prevailed upon to forego his determination to quit 
public life, and become a candidate for the Legisla- 
ture. 

He was elected, and continued to serve in that body 
until the spring of 1791. The anti-Federalists, how- 
ever, had the majority, and sent to the Senate of the 
United States, William Grayson and Richard Henry 
Lee, "who had opposed the Constitution, in preference 

69 



70 LIFEOFJOHN MARSHALI... 

to Madison and Pendleton, who had supported it. All 
the leading measures of the Administration were freely 
criticised and discussed in the Virginia Legislature, 
and their tendency regarded with a jealous watchful- 
ness. 

Marshall, who had the greatest confidence in the 
wisdom of Washington, and naturally inclined to favor 
a line of policy that would impart vigor and efiiciency 
to the new system, supported with all his powers those 
measures which most excited the animadversion, and 
aroused the hostih'ty, of the party who had originally 
opposed the Constitution as fraught with danger to 
liberty, and now thought they perceived, in the action 
of the government, the approaching realization of their 
fears. The funding system, the assumption of the 
State debts, and the creation of a national bank, were 
regarded as violative of the powers conferred on the 
General Government, and leading directly to consoli- 
dation. These grave questions were reviewed, criti- 
cised, and discussed in the halls of the Virginia Legis- 
lature, with abilities equal to the topics, and the occa- 
sion. Marshall participated in these debates, and 
asserted the constitutionality as well as the policy of 
the measures thus assailed ; but the current was too 
strong to be resisted. The predominant party in Vir- 
ginia were opposed to nearly every important measure 
of Washington's Administration, and took no pains to 
conceal their disapprobation and disgust. 

In 1792, Marshall declined a re-election, and for the 
next three years was immersed in the business of his 
profession. He was engaged, on one side or the 
other, in nearly all the important causes in the State 
and Federal Courts. These were, probably, the most 
active years of his professional life. But, extensive as 
were his engagements at the Bar, it was impossible for 



MEMBER OF VIRGINIA LEGISLATURE. 71 

a man of his abilities, and avowed opinions, in the 
stirring times in which he lived, to withdraw himself 
entirely from politics. Assailed as was the domestic 
policy of the government, its foreign policy was even 
more fiercely denounced. The President's celebrated 
Proclamation of Neutrality inflamed the elements of 
discontent, stimulated the zeal, and increased the 
strength of the opposition. On this occasion, Marshall 
came forward in support of the President's course, and 
at a meeting of the citizens of Richmond obtained a 
considerable majority in favor of resolutions approving 
it. But he paid the usual penalty, rigorously inflicted 
upon all who, with whatever purity of motive, actively 
participate in political discussions ; he was assailed by 
the opposite party with great bitterness. Bold re- 
proaches and witty malice were studiously employed 
to weaken his influence, and detract from the merit 
of his arguments. He was denounced as an advocate 
of aristocratic principles ; as a loyalist and an enemy 
of republicanism. But these attacks failed of their 
aim. In Richmond, where his character, political sen- 
timents, and manner of life were well understood, the 
assaults upon him proved perfectly harmless. 

In 1795, he was again elected a member of the State 
Legislature ; but against his wishes, and without his 
consent. The circumstance?, however, seemed to jus- 
tify this step. It was doubtful, so nearly equally were 
parties divided, whether the regular candidate of the 
Federalists, an intimate personal friend of Marshall's, 
could be elected. Accordingly, a poll was opened for 
Marshall, while he was engaged in one of the Courts, 
(notwithstanding he had decHned being a candidate, 
and declared that his feelings and honor were engaged 



72 LIFE OF JOHN lAI A R S H A L L . 

for his friend,) and he was again returned as a mem- 
ber of the Legislature. 

The Jay treaty, as we have elsewhere seen, had, at 
this time, created throughout the country an unpara- 
lelled ferment and excitement. In Virginia, it was 
attacked with unsparing zeal and bitterness. At a 
meeting of the citizens of Richmond, at which the 
venerable Chancellor Wythe presided, resolutions were 
adopted, denouncing it ' as insulting to the dignity, 
injurious to the interest, dangerous to the security, 
and repugnant to the Constitution of the United 
States.' At a subsequent meeting of the same citi 
xens, Marshall introduced resolutions of a contrary 
tenor, and supported them in a speech of great power. 
His resolutions were adopted; but, marked as was his 
success on this occasion, it was in the Legislature that 
he received the most gratifymg proofs of the vigor and 
effect of his arguments. There, both the expediency 
and constitutionality of the treaty were warmly de- 
nied. Inasmuch as the power to regulate commerce 
was bestowed on Congress, it was maintained, with 
great confidence, that the Executive had no constitu- 
tional right to negotiate a commercial treaty. Mar- 
shall's reply to this position has been considered as 
one of the most memorable displays of his genius. His 
speech, however, was not reported; but the traditional 
account is, that, for cogency of reasoning, and com- 
prehensive knowledge of the whole subject matter of 
the debate, it was altogether admirable. He demon- 
strated so clearly the competency of the Executive to 
make the treaty, that all objection to it on constitu- 
tional grounds was abandoned. And even the resolu- 
tion of the House approving the conduct of the Vir- 



MEMBEK or VIRGINIA LEGISLATURE. 73 

ginia Senators in voting against the treaty, expressed 
confidence in the patriotism and wisdom of the Presi- 
dent, and declared that it was not intended to censure 
his motives in ratifying it. The fame of this great 
argument of Marshall's extended beyond the limits of 
Virginia. It made his name familiar throughout the 
country. When he visited Philadelphia a few months 
after, to argue the British debt case,^ he was an object 
of marked attention. 

* I then became acquainted,' he says, in a letter to a 
friend, ' with Mr. Cabot, Mr. Ames, Mr. Dexter, and 
Mr. Sedgwick of Massachusetts, Mr. Wadsworth of Con- 
necticut, and Mr. King of New York. I was delighted 
with these gentlemen. The particular subject [the 
British treaty] which introduced me to their no- 
tice, was at that time so interesting, and a Virginian, 
who supported, with any sort of reputation, the mea- 
sures of the Government, was such a rata avis, that I 
was received by them all with a degree of kindness, 
which I had not anticipated. I was particularly inti- 
mate with Mr. Ames, and could scarcely gain credit 
with him, when I assured him that the appropriations 
would be seriously opposed in Congress.'^ 

The death of Mr. Bradford, the Attorney-General, 
in the summer of 1795',' gave Washington an opportu- 
nity to mark his appreciation of the character and 
abilities of Marshall, by tendering him the vacant post. 

' Ante, p. 32. 

* Story's Discourse, p. 40. See Marshall's Letter to Hamilton, of 
April 25th, 179G, (Hamilton's Works, vol. vi.,) giving an account 
of a public meeting in Richmond, at which a resolution was carried 
declaring the validity of the treaty, and its binding effect on Con- 
gres'-? 



74 LIFE OF JOHN MARSHALL. 

' The salary annexed thereto,' said the President's let- 
ter, ' and the prospect of a lucrative practice in this 
city [Philadelphia], the present seat of the General 
Government, must be as well known to you, better, 
perhaps, than they are to me, and, therefore, I shall 
say nothing concerning them.' * This offer he declined 
upon the ground that it would interfere with his en- 
gagements at the Bar in Virginia. 

In the following summer, Washington again called 
upon Marshall to enter the public service, as successor 
of Monroe at Paris; but he declined, on the ground that 
the crisis of his affairs rendered it impossible for him 
to leave the United States. 'Otherwise,' he added, 
* such is my conviction of the importance of that duty 
which you would confide to me, and, pardon me if I 
add, of the fidelity with which I should attempt to 
perform it, that I would certainly forego any consider- 
ation not decisive with respect to future fortunes, and 
would surmount that just diffidence I have ever enter- 
tained of myself, to make an effort to convey truly 
and faithfully to the Government of France those sen- 
timents which I have ever believed to be entertained 
by that of the United States.'^ At this time, he 
thought his determination to remain at the Bar unal- 
terable. ' My situation at the Bar,' said he, ^ appeared 
to me to be more independent, and not less honorable, 
than any other; and my preference for it was decided.'^ 
In the next chapter, we shall see the occasion that in- 
duced him to change his determination, and first en- 
gaged him in the service of the (General Government. 

In the meantime he continued a member of the Vir- 
ginia Legislature ; but rarely participated in the de- 

' Washington's Writings, vol. xi., p. 62. August 25t'., 1796. 
« Ibid., p. 143. July 11th, 1796. 
• Story's Discourse, p. 41. 



MEMBER OF VIRGINIA LEGISLATURE. 75 

bates, except to vindicate the measures of the Federal 
Administration. One of these debates he has thus 
described : — 'It was, I think/ says the Chief Justice, 
'in the session of 1796, that I was engaged in a debate, 
which called forth all the strength and violence of 
party. Some Federalist moved a resolution, expressing 
the high confidence of the House in the virtue, patriot- 
ism, and wisdom of the President of the United States. 
A motion was made to strike out the word wisdom. In 
the debate the whole course of the Administration was 
reviewed, and the whole talent of each party was 
brought into action. Will it be believed, that the 
word was retained by a very small majority ? A very 
small majority of the Legislature of Virginia acknowl- 
edged the wisdom of General Washington !' * 

In the next chapter we shall view the course of 
Marshall and his colleagues in their endeavors to ad- 
just the difficulties with France, and witness the ad- 
mirable temper which marked his conduct throughout 
hie disagreeable stay at Paris. 

' Stoiys Disooarse, r- 41 



CHAPTER VIII. 

1797 — 1798. 
ENVOY EXTRAORDINARY TO FRANCE. 

We have seen, in the preceding chapter, that when 
Monroe was recalled from France, for causes which we 
have elsewhere explained, the vacant post was offered 
to Marshall. When he declined it, the appointment was 
conferred on Charles Cotesworth Pinckney. The result 
of his mission we have already seen ; tlie French Gov- 
ernment not only refused to receive him, but finally 
ordered him to leave the country. He then proceeded 
to Amsterdam, and awaited instructions from home. 
In this conjuncture, the Administration determined to 
send out an Extraordinaiy Commission to renew nego- 
tiations with France, and thus, if possible, avoid the 
alternative of war. Accordingly, on the 31st of May, 
1797, President Adams nominated, as Envoys Extra- 
ordinary to that country, Charles Cotesworth Pinck- 
ney, John Marshall, and Francis Dana. The latter 
declining the appointment, it was conferred on Elbridge 
Gerry. 

Marshall accepted the post which was thus assigned 
him with reluctance ; but the occasion was so interest- 
ing, and the exigency so great, that he did not feel at 
liberty to decline it. He arranged his affairs at home 

76 



ENVOY EXTRAORDINARY TO FRANCE. 77 

with all convenient despatch, and by July was ready 
to embark for Europe. On his departure from Rich- 
mond, he was attended, for several miles, by a large 
cavalcade of his fellow-citizens, who, on this, as on all 
occasions, invariably evinced the greatest attachment 
to his person, and respect for his character. However 
assailed he might be by political opponents, and how- 
ever his political sentiments might be questioned, that 
attachment and respect were never wanting. 

He embarked at Philadelphia for Amsterdam, in the 
ship Grace, Captain Willis, on the 17th of July, 1797. 
On the same day, the President, in a letter to Gerry, 
thus describes him : — ' He is a plain man, very sensi- 
ble, cautious, guarded, and learned in the law of na- 
tions. I think you will be pleased with him." 

Naturally, very great solicitude was felt as to the 
reception that awaited him and his colleagues at Paris; 
and that solicitude was increased by the long interval 
which elapsed before any communication was received 
from them. Owing to the delays incident to a win- 
ter's voyage, their first official letter did not reach the 
Secretary of State until the 4th of March, 1798. That 
letter dissipated all hope that they would be officially 
recognized, or the objects of their mission be accom- 
plished. 

This mission constitutes a curious chapter in the 
history of diplomacy, and the circumstances that 
marked its progress and result are full of interest. 

The Envoys arrived at Paris on the evening of Octo- 
ber 4th, 1797. The next day, verbally and unoffi- 
cially, they informed M. Talleyrand, the Minister of 
Foreign Afiairs, of their arrival, and desired to know 
when he would be at leisure to receive one of their 

' Adams' Works, vol. viii., p. 549. 



78 LIFE OF JOHN MARSHALL. 

Secretaries with the official notification. He appointed 
the next day at two o'clock ; when their letter of cre- 
dence was duly presented to him. On the 8th, they 
waited upon him at his house, where he kept his office. 
He informed them that the Directory had required 
him to make a report relative to the situation of the 
United States with regard to France, which he was 
then about, and which would be furnished in a few 
days, when he would let them know what steps were 
to follow. They asked if cards of hospitality were, in 
the meantime, necessary. He said they were, and 
should be delivered to them. The next day they 
were sent, and in a style suitable to their official 
character. 

Thus far appearances indicated that they would be 
received, and the negotiation proceed; but on tlie 
14th, Major Mountflorence, Chancellor of the Ameri- 
can Consulate at Paris, informed General Pinckney 
that he had had a conversation with Talleyrand's 
private and confidential Secretary, who told him that 
the Directory were greatly exasperated at some parts 
of the President's speech at the opening of the late 
session of Congress, and would require an explanation 
of them from the American Ministers. In another 
conversation, the Secretary informed Mountflorence 
that M. Talleyrand had told him that it was probable 
they would not have a public audience of the Direc- 
tory till their negotiation was finished; that, in the 
meantime, persons might be appointed to treat with 
them, but they would report to Talleyrand, who would 
have the direction of the negotiation. 

On the 18th, M. Hottinguer, who had been de- 
scribed to General Pinckney, as a gentleman of con- 
siderable credit and reputation, called on the General, 
and informed him that he had a message from M. Tal- 



ENVOY EXTRAOBDINART TO FRANCE. 79 

ley rand to communicate ; that he was sure M. Talley- 
rand had a great regard for America and its citizens ; 
and was very desirous that there should be a recon- 
ciliation between the two countries. To accomplish 
this, he was ready, if it was thought proper, to suggest 
a plan, confidentially, which M. Talleyrand expected 
would answer the purpose. General Pinckney said 
he should be glad to hear it. M. Hottinguer replied, 
that the Directory, and particularly two of them, were 
exceedingly irritated at some passages of the Presi- 
dent's speech, and desired that they should be soft- 
tened ; that this step would be necessary previous to 
their reception ; and b asides this, a sum of money was 
required for the pocket of the Directory, which would 
be at the disposal of M. Talleyrand, and that a loan 
would also be insisted on. M. Hottinguer said, these 
measures acceded to, M. Talleyrand had no doubt that 
the diJBferences with France might be accommodated. 
The particular passages of the President's speech that 
had given offence he could not point out, nor the quan- 
tum of the loan, but the douceur for the Directory, he 
said, was twelve hundred thousand livres, about 
£50,000 sterling. 

General Pinckney told him, that he and his col- 
leagues, from their arrival in Paris, had baen treated 
with great slight and disrespect; that they wished for 
peace with France, and had been entrusted with great 
powers to accomplish it, on honorable terms ; but with 
regard to the propositions communicated by M. Hot- 
tinguer, he would not consider them before he had 
disclosed them to his colleagues ; that having done so, 
M. Hottinguer should hear from him. 

On communicating to his colleagues the purport of 
M. Hottinguer's visit, it was agreed, that General 
Pinckney should request him to make his propositions 



80 LIFE OF JOHN MARSHALL. 

to them all, and, to avoid mistakes or misapprehen- 
sion, reduce the heads of them to writing. Accord- 
ingly, on the next day, General Pinckney called on M. 
Ilottinguer, who consented to see the Envoys in the 
evening. He came at the appointed time, and left 
with them a set of propositions in writing. He had 
informed General Pinckney, however, that his com- 
munication was not directly with M. Talleyrand, but 
through another gentleman, in whom M, Talleyrand 
had great confidence. This afterwards proved to be 
M. Bellamy, of Hamburg. 

On the morning of the 20th, M. Hottinguer called, 
and informed the Envoys, that M. Bellamy, the confi- 
dential friend of M. Talleyrand, would see them him- 
self, and make the necessary explanations. He came 
in the evening, and was received in General Marshall's 
room. He mentioned the favorable impressions of M. 
Talleyrand towards the United States, impressions 
which were made by the kindness and civilities he 
had personally received while there ; and that he was 
solicitous to repay those kindnesses, and was willing 
to aid the Envoys in their negotiatiation by his good 
offices with the Directory, who were extremely irri- 
tated on account of passages in the President's speech, 
and who had neither acknowledged nor received them, 
and, consequently, had not authorized M. Talleyrand 
to have any communications with them. In conse- 
quence, he could not see them himself, but had autho- 
rized M. Bellamy to communicate to them certain pro- 
positions, and receive their answers. But, in the same 
breath, as it were, he declared that he was no diplo- 
matic character, was clothed with no authority, and 
was merely the friend of M. Talleyrand, and trusted 
by him. He then pointed out the objectionable pas- 
sages of the President's speech, and made a series of 



ENVOY EXTRAORDINARY TO FRANCE. 81 

propositions as the basis of the negotiation. These 
propositions referred to certain disavowals and repara- 
tions which were to be preUminary to a treaty. The 
treaty itself was to place France, with respect to the 
United States, on the same footing as they stood with 
England in consequence of the Jay Treaty. It was 
also to contain a secret article stipulating a loan to 
France. 

M. Bellamy dilated very much on the keenness of 
the resentment the President's speech had produced, 
and expatiated largely on the satisfliction indispens- 
ably necessary as a preliminary to negotiation. ' But,' 
said he, * gentlemen, I will not disguise from you, that 
this satisfaction being made, the essential part of the 
treaty remains to be adjusted. II faut de T argent — il 
faut heaucowp d argent ; you must pay money, you 
must pay a great deal of money.' The next morning 
M. Bellamy and M. Hottinguer breakfasted with the 
Envoys at Mr. Gerry's. The former did not come 
until ten o'clock, having passed the morning with M. 
Talleyrand. He represented that both M. Talleyrand 
and himself were extremely sensible of the pain the 
Envoys must feel in disavowing the obnoxious pas- 
sages of the President's speech ; but that they must 
consider such disavowal as an indispensable prelimi- 
nary to their reception, unless they could find means 
to change the determination of the Directory. He 
said he was not authorised to suggest those means; 
but, as a private individual, he would express the 
opinion that, with money, they would be able to succeed. 
He stated the sum which he believed would be satisfac- 
tory, and an eligible mode of giving it. There were, he 
sai 1, thirty-two millions of Dutch rescriptions, worth 
ten shillings in the pound, which might be assigned to 
the United States at twenty shillings in the pound. In 
6 



82 LIFE OF JOHN MARSHALL. 

the end they would lose nothing, for, after a peace, the 
Dutch Government would certainly repay them the 
amount. Hence, he said, the only operation of the 
measure would be an advance to France of thirty-two 
milUons, on the credit of the Government of Holland. 
When asked if the douceur to the Directory must be 
in addition to this sum, he answered in the affirma- 
tive. 

The Envoys told him that their powers were ample 
to negotiate a treaty ; but the proposition of a loan in 
any form exceeded the limits of their instructions. 
That one of their number would return to the United 
States in order to consult the Government respecting 
it, provided the Directory would suspend further cap- 
tures of American vessels, and proceedings on those 
already captured, &c. At this offer M. Bellamy was 
evidently disappointed. He said they treated the pro- 
position of a loan as if it came from the Directory, 
whereas it did not proceed from them, nor even from 
M. Talleyrand, but was only a suggestion from him- 
self, as a substitute to be proposed by the Envoys, in 
lieu of the painful disavowal that the Directory had 
determined to demand of them. They replied that 
they understood the matter perfectly ; that the propo- 
sition in form was to come from them, but, substan- 
tially, it proceeded from the Minister. M. Bellamy 
expressed himself vehemently on the resentment of 
France j complained that the Envoys, instead of pro- 
posing a substitute for the reparations demanded of 
them, were stipulating conditions to be performed by 
the Directory itself; that he could not take charge of 
their offers, and that the Directory would persist in 
demanding a disavowal of the offensive passages of the 
President's speech. They replied, that they could not 
help it; that the Directory must determine what the 



ENVOY EXTUAORDINARY TO FRANCE. 83 

honor and interests of France required them to do; 
but for themselves they must guard the honor and in- 
terests of the United States. That the idea of dis- 
avowing the President's speech could not be treated 
by them in a serious light ; that an attempt to do it 
would merely make them ridiculous to the Govern- 
ment and people they represented. M. Bellamy said, 
they certainly would not be received, and seemed to 
shudder at the consequences. 

About the 27th of October, news reached Paris that 
the definitive articles of peace between France and 
Austria had been signed, and on that day the Envoys 
received another visit from M. Hottinguer. He said 
some proposals had been expected from them; that 
the Directory were becoming impatient, and would 
take a decided course towards America, unless they 
could be softened. He spoke of the different position 
France occupied in consequence of the peace, as war- 
ranting the expectation of a change in the system of 
the Envoys. They replied that that position they had 
anticipated, and it would not in any degree affect their 
conduct. He urged that, since the peace, the Directory 
had taken a higher and more decided tone with respect 
to the United States and all other neutral nations than 
ever before, and were determined that all nations 
should aid them or be treated as enemies. They 
ai-swerei, that they had anticipated as much when 
they refused the propositions that had been made to 
them. M. Hottinguer, after expatiating on the power 
and violence of France, returned once more to the sub- 
ject of money. Said he, 'Gentlemen, you do not 
speak to the point ; it is money. It is expected that 
you will offer money.' They said they had already 
given a very explicit answer to that point. ' No,' said 
he, 'you have not. What is your answer?' They 



84 LIFE OF JOHN MARSHALL. 

replied, '^It is mo ; no ; vol a sixpence' The conversa- 
tion continued for nearly two hours ; and the public 
and private advance of money was pressed and re- 
pressed in a variety of forms. M. Hottinguer then 
said he would communicate, as nearly as he could, the 
substance of what had passed, either to the Minister, 
or to M. Bellamy, who would make the communicar 
tion. 

Thus far the Envoys had no proof whatever that 
M. Hottinguer and M. Bellamy were acting by direc- 
tion of M. Talleyrand, except their own assertions to 
that effect, the nature of their propositions, and the 
respectability of their characters. These left no doubt 
on their minds that they were authorised to confer 
with them. With M. Talleyrand himself they had 
held no direct communication, and had seen him but 
once, and that only on a formal occasion, and for a few 
moments. We shall now see that M. Talleyrand 
directly committed himself, and furnished conclusive 
evidence that the propositions and suggestions, which 
had been made to the Envoys, proceeded directly from 
himself. 

On the 22d of October, M. Hautval, a French gen 
tleman of respectable character, informed Mr. Gerry 
that M. Talleyrand had expected to have seen the 
American Ministers frequently in their private capaci- 
ties, and to have conferred with them individually on 
the objects of their mission ; and had authorised him 
to make this communication to Mr. Gerry. The latter 
sent for his colleagues, and a conference was held with 
M. Hautval on the subject. Pinckney and Marshall 
said, as they were not acquainted with M. Talleyrand, 
they could not, with propriety, call on him; but, 
according to the custom of France, he might expect 
this of Gerry from a previous acquaintance in the 



ENVOY EXTRAORDINARY TO FRANCE. 85 

United States. Tlie ii'-xt day Gerry, with great reluc- 
tance, however, called on M. Talleyrand, in company 
with M. Hautval ; but the Minister not being at his 
office, appointed the 28th for the interview. On that 
occasion, after the first introduction, M. Talleyrand 
began the conference. He said the Directory had 
passed an arrete, in which they demanded of the En- 
voys an explanation of some parts of the President's 
speech at the opening of the extra session of Congress, 
and a reparation for other parts. He said he was sen- 
sible that difficulties would exist on the part of the 
Envoys relative to this demand ; but on their offering 
money he thought he could prevent the effect of the 
arrete. Mr. Gerry requested M. Hautval to inform 
the Minister that the Envoys had no power to offer 
money. In that case, replied M. Talleyrand, they can 
take a power on themselves ; and proposed that they 
should make a loan. Mr. Gerry, in answer to the ob- 
servations of M. Talleyrand, said, that the uneasiness 
of the Directory respecting the President's speech was 
unconnected with the object of the mission ; that they 
had no instruction? with regard to it, and no powers 
whatever to make a loan. If it was deemed expedient, 
however, one of their number could return for instruc- 
tions on that point, provided the other objects of the 
negotiation could be discussed and adjusted. Mr. 
Gerry then expressed his wish that M. Talleyrand 
would confer with hiy colleagues. M. Talleyrand, in 
answer, said, he should be glad to confer with the 
other Envoys individually, hut that this matter about 
the money must he settled directly, without sending to 
America ; that he would not communicate the arrete 
for a week ; and that, if they could adjust the diffi- 
culty respecting the speech, an application would, ne- 
vertheless, go to the United States for a loan. 



86 LIFE OF JOHN MARSHALL. 

The reader will not fail to observe the complete cor- 
respondence between M. Talleyrand's propositions to 
Mr. Gerry, and the propositions made by M. Hottin- 
guer and M. Bellamy. The money which M. Talley- 
rand said must be settled directly, referred to the doii- 
ceur of £50,000, and he knew full well that the credit 
of the Envoys could command it. Indeed, a mercan- 
tile house, one of whose members introduced M. Hottin- 
guer to General Pinckney, had offered to answer their 
draughts; a circumstance, doubtless, well known to 
M. Talleyrand. 

Another visit from M. Hottinguer and M. Bellamy 
succeeded Mr. Gerry's interview with Talleyrand. The 
same propositions that had hitherto formed the burden 
of their communications, were substantially repeated, 
and enforced by high and threatening language. If the 
offers of Talleyrand were rejected, and war ensued, the 
fate of Venice might befall the United States, &c. 
* Perhaps,' said M. Bellamy, ^ you believe that, in re- 
turning, and exposing to your countrymen the unrea- 
sonableness of the demands of this Government, you 
will unite them in their resistance to those demands. 
Tou are mistaken. You ought to know that the diplo- 
matic skill of France, and the means she possesses in 
your country, are sufficient to enable her, with the 
French party in America, to throw the blame which 
will attend the rupture of the negotiations on the Fede- 
ralists, as you term yourselves, but on the British 
party, as France terms you ; and you may assure your- 
selves this will be done.' 

Such was the haughty style adopted by these unoffi- 
cial agents, and it produced its natural result. The 
Envoys now determined to hold no more indirect in- 
tercourse with the French Government; and nothing 
but an anxious solicitude to preserve peace with 



ENVOY KXTHAORDINART TO FRANCE. 87 

France induced them to remain longer at Paris, unre- 
ceived as they were, and treated with personal neglect 
and contempt. They informed the agents of M. Tal- 
leyrand that they would receive no mo^"'; propositions 
from persons without acknowledged authority to treat 
with them ; but, notwithstanding this, frequent and 
urgent attempts were made to inveigle them into an 
unofficial negotiation. 

Beaumarchais, through John A. Chevallie, his agent 
at Richmond, liad employed Marshall as his advocate 
in a suit against the State of Virginia for military 
stores, &c., furnished during the Revolution. Very 
naturally, Beaumarchais invited Marshall and his col- 
leagues to dine with him, and they reciprocated the 
attention. Beaumarchais was an intriguer, almost by 
profession, and an exceedingly clever one. The sort 
of intimacy existing between him and the Envoys was 
a source of hope to M. Bellamy. M. de Beaumarchais 
entered into his views at once. He had obtained a 
judgment for one hundred and forty-five thousand 
pounds sterling in his suit against Virginia; but from 
this judgment an appeal was pending, and the final 
result was very uncertain. 

On the 17th of December, M. Bellamy informed 
Marshall that Beaumarchais had consented, provided 
his claim could be established, to sacrifice £50,000 
sterling of it, as the private gratification which had 
been required of the Envoys, so that the payment of 
that sum would not be any actual loss to the Ameri- 
can Government. But the Envoys considered this 
proposition as a renewal of the old system of indirect, 
unauthorized negotiation, and would not entertain it. 

* Having been originally the counsel of M. de Beau- 
marchais,' says Marshall, ' I had determined, and so I 



88 LIFE OF JOHN MARSHALL. 

had informed General Pinckney, that I would not, by 
my voice, establish any agreement in his favor ; but 
that I would positively oppose any admission of the 
claim of any French citizen, if not accompanied with 
the admission of the claims of the American citizens 
for property captured and condemned for want of a 
I'ole d' equipage.^ 

On the 1 7th of December, Mr. Gerry accompanied 
M. Belhimy on a visit to Talleyrand, who received 
them politely. Mr. Gerry observed to him, that M. 
Bellamy had stated to him that morning some propo- 
sitions as coming from M. Talleyrand (referring to the 
gratuity of £50,000 sterling, and the purchase of the 
Dutch rescriptions, as the means of restoring friendship 
between the two countries), respecting which he could 
give no opinion. M. Talleyrand said the information 
M. Bellamy had given him was just, and might always 
be relied on ; but that he would reduce to writing his 
propositions, which he did, and after showing them to 
Mr. Gerry, he burnt the paper. His propositions related 
to the purchase of the Dutch rescriptions ; but M. Tal- 
leyrand, on this occasion, did not mention the gratuity. 
That he left to the management of his agents. 

In this stage of the business, the Envoys came to 
the determination to prepare a letter to M. Talleyrand, 
stating the object of their mission, and discussing the 
subjects of difference between the two nations, in the 
same manner as if they had actually been received ; 
and to close the letter with requesting the Government 
to open the negotiation with them, or grant them their 

' Marshall's Journal. Wait's American State Papers, vol. iii., p. 
214. We should observe that the despatches of the Envoys detailing 
the history of their mission were prepared, for the most part, by Mar- 
?liail ; and from them the narrative in the text is chiefly derived. 



ENVOY EXTRAORDINARY TO FRANCE. 89 

passports. This letter was prepared by Marshall, and 
has always been regarded as one of the most admira- 
ble of our State papers. For clearness of statement, 
cogency of argument, and dignified moderation, it de- 
serves unqualified praise.' Talleyrand, in his reply 
of the 18th of March, complained that it reversed the 
known order of facts, ' so that it would appear,' he 
said, 'from that exposition, as partial as unfaithful, 
that the French Republic has no real grievance to sub- 
stantiate, no legitimate reparation to demand, whilst 
the United States should alone have a right to com- 
plain, should alone be entitled to claim satisfaction.' 
This testimony to the ability with which the vindica- 
tion of the United States was conducted, was rather 
enhanced by the failure of Talleyrand to substantiate 
the demerits which he attributed to it. Indeed, if the 
United States had the right, consistently with their 
treaty of alliance with France, to observe a fair and 
honest neutrality, and that right, said Marshall, ^ is 
not recollected ever to have been questioned, and is 
believed not to admit of doubt,' then all the general 
charges of an unfriendly disposition, made against them 
by M. Talleyrand, really amounted to nothing, because 
the facts which he adduced to support them grew in- 
evitably out of that situation. 

On the 18th of January, 1798, the French Govern- 
ment passed a decree subjecting to capture ail neutral 
vessels laden in part or whole with the manufactures 
or productions of England or its possessions. This de- 
cree convinced the Envoys that it was entirely imprac- 
ticable to effect the objects of their mission. They 
determined, therefore, to write Talleyrand another let- 

' See this letter in Wait's State Papers, vol. iii., p. 219. We re- 
gret that our space forbids us to make extracts from it. It was dated 
January 17th, 1798. 



90 LIFE OF JOHN MARSHALL. 

ter, state their objections to the decree, and announce 
their purpose to return to the United States. This 
letter was prepared, but, before sending it, and de- 
manding their passports, they deemed it expedient to 
know of Talleyrand if he had any reply to make to 
their previous letter, which thus far remained unno- 
ticed. He informed their Secretary, on the 19th of 
February, that he had no answer to make, as the 
Directory had taken no order on the subject; but when 
they did, the Envoys should be informed of it. Anxious 
to hear explicitly from Talleyrand before sending their 
final letter, whether thev possessed the means to accom- 
modate the differences with France, they solicited a 
personal interview with him. He appointed a day to 
receive them. Accordingly, they waited upon him. 
The particulars of this interview it is unnecessary to 
state. 

The substance of what M. Talleyrand said was, tliat 
the Directory would require some proof of a friendly 
disposition on the part of the United States previous 
to a treaty, and he alluded very intelligibly to a loan 
as the means of furnishing that proof. To this it was 
replied that they had no power to make a loan ; that 
such an act would violate the neutrality of the United 
States, and involve them in war with Great Britain. 
Talleyrand, in answer, said that persons in their situa- 
tion must often use their discretion, and exceed their 
powers for the public good. That a loan could be so 
disguised, as effectually to prevent any interference 
with the neutral position of the United States ; that 
if they desired to effect the thing, they would have no 
difficulty in finding the means. 

Mr. Gerry had already received a proposition from 
Talleyrand's Secretary, to stipulate a loan to the 
French Government now, payable after the war, in 



ENVOY EXTRAORDINARY TO FRANCE. 91 

supplies of American produce for St. Domingo, and the 
French islands. He was in favor, it would seem, of 
negotiating a treaty on the basis of such a loan, which 
he thought might be so guarded, as not to violate our 
neutrality.^ 

Accordingly, he now observed, that Dutrimond had 
suggested a loan of this character, and Talleyrand sig- 
nified that the proposed mode of payment was a means 
of covering it. If they were only sincere in their wish, 
said he, it would be easy to bring about the end. Mar- 
shall told Talleyrand, among other things, that for 
the United States to furnish money to France was, in 
fact, to make war ; which they could not consent to 
do ; that they could not make a stipulation of the 
kind, because it would absolutely transcend their 
powers ; that, with respect to supplies to St. Domingo, 
no doubt could be entertained that American mer- 
chants would furnish them very abundantly, if France 
would permit the commerce ; and a loan really pay- 
able after the war might then be negotiated.^ But 

' Federal Administrations, vol. ii., p. 35. 

* As the commerce would be a perfectly lawful one with respect to 
the belligerents, Marshall's idea seems to have been, although not 
very clearly expressed, that a loan to France, payable after the war, 
and limited to a specific object, namely, to pay for these very sup- 
plies, might be negotiated with perfect propriety. It was not furnish- 
ing France with the means of raising money for immediate use, but 
enabling her at a definite time, viz., after the war, to pay for supplies 
which it was lawful for the merchants of a neutral nation to send to 
her ports. 

Gerry, on the contrary, as it would appear, was in favor of stipu- 
lating a loan to France, subject only to two conditions, namely, 
that it should be payable after the war, and in supplies. If France 
could raise money on such a loan for present use, she was at liberty 
to do so. However disguised such a stipulation might be, it would, 
without doubt, have violated the neutral position of the United 
States. The only difi"erence between furnishing the loan in money 



92 LIFE OF JOHN MARSHALL. 

Talleyrand insisted that, to prove the friendship of the 
United States, there must be some immediate aid, or 
something which might avail France. 

He complained that the Envoys had not visited 
him, and said that, because the Directory had not 
given them an audience, was no reason why they 
should not have seen him often, and endeavored to 
remove the obstacles to a mutual approach. Marshall 
told him that their seeing the Directory, or not, was 
an object of no sort of concern to them ; that they 
were perfectly independent with regard to it; but 
they conceived that, until their public character was 
in some degree recognized, and they were treated as 
the Ministers and representatives of their Government, 
they could not take upon themselves to act as Minis- 
ters ; because, by doing so, they might subject them- 
selves to some injurious circumstance to which they 
could not submit. 

At a subsequent interview. General Pinckney told 
him that the Envoys considered the propositions he 
had suggested to them when they had previously seen 
him, as substantially the same as had been made to 
them by M. Hottinguer and M. Bellamy, and they had 
no power to accede to them. M. Talleyrand, without 
at all disavowing M. Hottinguer and M. Bellamy, pro- 
ceeded to argue that it would be no departure from 
neutrality, to stipulate a loan after the war; but Mar- 
shall replied that any act of the American Govern- 
ment, on which one of the belligerent powers could 
raise money for immediate use, would be furnishing 
aid to that power, and would be taking part in the 
war; that he could not say what his Government 

and in supplies, so far as it might aflfect France, would be, that she 
could raise money more readily and advantageously in the formnr case 
than in the latter. 



ENVOY EXTRAORDINARY TO FRANCE. 93 

would do if on the spot, but he was perfectly clear 
that, without additional orders, they could not do what 
France desired. 

About two weeks after this last interview, namely, 
on the 18th of March, M. Talleyrand transmitted to 
the Envoys his answer to their letter of the 17th of 
January, which we have described on a previous page. 
He said it was disagreeable to be obliged to think that 
the instructions, under which they acted, had not been 
drawn up with the sincere intention of attaining paci 
fie results ; * because, far from proceeding, in their me- 
morial, upon some avowed principles and acknowledged 
facts, they have inverted and confounded both, so as 
to be enabled to impute to the Republic all the mis- 
fortunes of a rupture, which they seem willing to pro- 
duce by such a course of proceedings. It is evident 
that the desire, plainly declared, of supporting, at 
every hazard, the treaty of London, which is the prin- 
cipal grievance of the Republic, of adhering to the 
spirit in which this treaty was formed and executed, 
and of not granting to the Republic any of the means 
of reparation, which she has proposed, through the 
medium of the undersigned, have dictated those in- 
structions.' ' The undersigned does not hesitate to 
believe, that the American nation, like the French 
nation, sees this state of things with regret, and does 
not consider its consequences without sorrow.' * It is, 
therefore, only in order to smooth the way of discus- 
sions, that he declares to the Commissioners and En- 
voys Extraordinary, that, notwithstanding the kind 
of prejudice which has been entertained with respect 
to them, the Executive Directory is disposed to treat 
with that one of the three, whose opinions, presumed 
to be more impartial, promise, in the course of the ex- 
planations, more of that reciprocal confidence, which 



94 LIFE OF JOHN MARSHALL. 

is indispensable.' The Minister intended, by this lan- 
guage, to designate Gerry, whose views respecting a 
loan were supposed to be more favorable to France 
than those of his colleagues. 

To this letter of M. Talleyrand, the Envoys pre- 
sented a reply on the 3d of April. It proceeded from 
the pen of Marshall, and is characterized by the same 
ability, candor, and moderation, that distinguished his 
first letter. ' You contend, citizen Minister,' say the 
Envoys, Hhat the priority of complaint is on the side 
of France, and that those measures, which have so in- 
jured and oppressed the people of the United States, 
have been produced by the previous conduct of their 
Government. To this the undersigned will now only ob- 
serve, that if France can justly complain of any act of 
the Government of the United States, whether that 
act be prior or subsequent to the wrongs received by 
that Government, a disposition and a wish to do in 
the case what justice and friendship may require, is 
openly avowed, and will continue to be manifested.' 

A full and searching reply to all the complaints 
urged against the United States by M. Talleyrand, de- 
monstrates how insubstantial was the basis upon which 
they rested. The reply to two of Talleyrand's specifi- 
cations of an unfriendly disposition on the part of the 
United States, we shall venture, at the risk of some 
little prolixity, to quote at length. M. Talleyrand, 
in pointing out the Jay Treaty as an object of com- 
plaint on the part of France, said, that the small ma- 
jority by which it was sanctioned in the two Houses 
of Congress, and the number of respectable voices 
raised against it in the nation, deposed honorably in 
favor of the opinion which the French Government 
entertained of it. 



ENVOY EXTRAORDINARY TO FRANCE- 95 

*You must be sensible, citizen Minister,' was the 
reply, ' that the criterion by which you ascertain the 
merits of the instrument in question, is by no means 
infallible, nor can it warrant the inference you draw 
from it. In a republic like that of the United States, 
where no individual fears to utter what his judgment 
or his passions may dictate, where an unrestrained 
press conveys alike to the public eye the labors of vir- 
tue, and the efforts of particular interests, no subject 
which agitates and interests the public mind can unite 
the public voice, or entirely escape public censure. In 
pursuit of the same objects a difference of opinion will 
arise in the purest minds, from the different manner 
in which those objects are viewed ; and there are situ- 
ations in which a variety of passions combine to silence 
the voice of reason, and to betray the soundest judg- 
ments. In such situations, if the merit of an instru- 
ment is to be decided, not bj' itself, but by the appro- 
bation or disapprobation it may experience, it would 
surely be a safer rule to take as a guide the decision 
of a majority, however small that majority may be, 
than to follow the minority. A treaty, too, may be 
opposed as injurious to the United States, though it 
should not contain a single clause which could preju- 
dice the interests of France. It ought not to be sup- 
posed that a treaty would, for that reason, be offensive 
to this Republic. ... It is considered as having been 
demonstrated, that this treaty leaves the neutrality of 
the United States, with respect both to France and 
England, precisely in its former situation, and that it 
contains no concessions which are either unusual, or 
derogatory, from their alliance with this Republic. 
But if, in forming this judgment, the American Gov- 
ernment has deceived itself, still it ought to be remem- 
bered that it has ever manifested a readiness to place 



96 LIFE OF JOHN MARSHALL. 

France on the footing of England, with respect to the 
articles complained of 

Another allegation of M. Talleyrand was, ' that the 
journals known to be indirectly under the control of 
the Cabinet, have redoubled their invectives and calum- 
nies against the Republic, its magistrates and its En- 
voys; and that pamphlets openly paid for by the 
Minister of Great Britain have reproduced, under 
every form, those insults and calumnies, without 
having ever drawn the attention of the Government 
to a state of things so scandalous, and which it might 
have repressed.' The Envoys replied thus : — 

* The genius of the Constitution, and the opinions 
of the people of the United States, cannot be over- 
ruled by those who administer the Government. 
Among those principles deemed sacred in America — 
among those sacred rights considered as forming the 
bulwark of their liberty, which the Government con- 
templates with awful reverence, and would approach 
only with the most cautious circumspection, there is 
no one, of which the importance is more deeply im- 
pressed on the public mind, than the liberty of the 
press. That this liberty is often carried to excess, that 
it has sometimes degenerated into licentiousness, is 
seen and lamented ; but the remedy has not yet been 
discovered. Perhaps it is an evil inseparable from the 
good with which it is allied; perhaps it is a shoot 
which cannot be stripped from the stalk, without 
wounding vitally the plant from which it is torn. 
However desirable those measures might be, which 
might correct without enslaving the press, they have 
never yet been devised in America. No regulations 
exist which enable the Government to suppress what- 



ENVOY EXTRAORDINARY TO FRANCE. 97 

ever calumnies and invectives any individual may 
clioose to offer to the public eye; or to punish such 
calumnies and invectives, otherwise than by a legal 
prosecution in courts, which are alike open to all who 
consider themselves as injured. Without doubt, this 
abuse of a valuable privilege is matter of peculiar re- 
gret when it is extended to the Government of a 
foreign nation. The undersigned are persuaded, it 
never has been so extended with the approbation of 
the Government of the United States. Discussions 
respecting the conduct of foreign powers, especially in 
prints respecting the rights and interests of America, 
are unavoidably made in a nation where public mea- 
sures are the results of public opinion, and certainly 
do not furnish cause for reproach ; but it is believed 
that calumny and invective have never been substi- 
tuted for the manly reasoning of an enlightened and 
injured people, without giving pain to those who ad- 
minister the affairs of the Union. Certainly this 
offence, if it be deemed by France of sufficient magni- 
tude to be worthy of notice, has not been confined to 
this Republic. It has been still more profusely lav- 
ished on its enemies, and has even been bestowed with 
an unsparing hand on the Federal Government itself. 
Nothing can be more notorious than the calumnies and 
invectives with which the wisest measures, and the 
most virtuous characters of the United States, have 
been pursued and traduced. It is a calamity occasioned 
by, and incident to, the nature of liberty, and which can 
produce no serious evil to France. It is a calamity 
occasioned neither by the direct nor indirect influence 
of the American Government. In fact, that Govern- 
ment is believed to exercise no influence over any 
press. 

* You must be sensible, citizen Minister, with how 



98 LIFE OF JOHN MARSHALL. 

much truth the same complaint might be urged on the 
part of the United States. You must know well, what 
degrading and unworthy calumnies against their Gov- 
ernment, its principles and its officers, have been pub- 
lished to the world by French journalists and in 
French pamphlets. That Government has even been 
charged with betraying the best interests of the na- 
tion, with having put itself under the guidance, nay, 
more, with having sold itself to a foreign court. But 
these calumnies, atrocious as they are, have never 
constituted a subject of complaint against France. 
Had not other causes, infinitely more serious and 
weighty, interrupted the harmony of the two repub- 
lics, it would still have remained unimpaired, and the 
mission of the undersigned would never have been 
rendered necessary.' 

To the suggestion of M. Talleyrand that the Execu 
tive Directory was disposed to treat with one of the 
Envoys, they answered that no one of them was autho- 
rized to take upon himself a negotiation evidently in- 
trusted, by the tenor of their powers and instructions, 
to the whole ; nor could any two of them propose to 
withdraw themselves from the task committed to 
them by their Government, whilst a possibility re- 
mained of their performing it. They concluded their 
letter by requesting that, if they had failed to dissi- 
pate the prejudices which had been conceived against 
them, and it should be the will of the Directory to 
order passports for the whole, or any number of them, 
M. Talleyrand would accompany such passports with 
letters of safe conduct, which would protect the ves- 
sels in which they might respectively sail, from French 
cruisers. 

It was, doubtless, the hope and expectation of M. 



ENVOY EXTRAORDINARY TO FRANCE. 99 

Talleyrand that Pinckney and Marshall would volun- 
tarily leave France, upon receiving his letter of the 
18th of March, in which he made the offensive distinc- 
tion between them and their colleague Gerry, on the 
ground that the ' opinions' of the latter were more 
* impartial' than theirs. In a letter to Gerry, of April 
3d, he said, *I suppose, Sir, that Messrs. Pinckney and 
Marshall have thought it useful and proper, in conse- 
quence of the intimations which the end of my note of 
tlie 18th of March last presents, to quit the territory 
of the Republic' As the Envoys, however, had pre- 
viously made a conditional application for their pass- 
ports, this hint to them was quite unnecessary. The 
truth is, the Directory wished to get rid of Pinckney 
and Marshall, but, at the same time, to avoid the 
odium of sending them away. Having done all they 
could, consistently with self-respect and the honor of 
their country, to accomplish the objects of their mis- 
sion, and having failed, without any fault on their 
part, they were anxious to return to the United 
States. But they would not leave Paris on the mere 
intimation of the French Minister, nor without those 
protections which the law of nations entitled them to 
demand. 

Marshall told Talleyrand that this was not the 
manner in which a foreign Minister ought to be 
treated. He replied that Marshall was not a foreign 
Minister, but was to be considered as a private Ameri- 
can citizen ; and must obtain his passports, like others, 
through the Consul. To this it was answered, that he 
was a foreign Minister, and that the French Govern- 
ment could not deprive him of that character, which 
was conferred on him, not by Talleyrand, but by the 
United States; and, though the Directory might refuse 
to receive or to treat with him, still his country had 



LofC. 



100 LIFE OF JOHN MARSHALL. 

clothed him with the requisite powers, which he held 
independently of France; that it' he was not acceptable 
to the French Government, and, in consequence, they 
determined to send him away, still he ought to be sent 
away like a Minister ; that he ought to have his pass- 
ports, with letters of safe conduct, which would protect 
him from the cruisers of France. Talleyrand replied, 
that, if Marshall wished for a passport, he must give 
in his name, stature, age, complexion, &c., to the Ame- 
rican Consul, who would obtain one for him; that, 
with respect to a letter of safe conduct, it was unne- 
cessary, as no risk from the cruisers would be in- 
curred.^ 

Treated with studied indignities, Pinckney and Mar- 
shall, nevertheless, persisted in their demands, and 
passports were finally sent to them. The latter left 
Paris on the 12th of April, and France on the 16th; 
out General Pinckney obtained permission, with great 
difficulty, however, to remain for two or three months, 
on account of the critical state of his daughter's health. 
Gerry, who, according to Talleyrand, had manifested 
* himself more disposed to lend a favorable ear to every- 
thing which might reconcile the two Republics,' was 
induced, by threats of immediate war against the 
United States, to separate from his colleagues, and 
stay in Paris. He steadily refused, however, to enter 
into a formal negotiation, and in August sailed for the 
United States. With fair intentions, doubtless, his 
conduct, nevertheless, was marked by several instances 
of weakness, and provoked severe criticisms. 

The despatches of the Envoys, containing the facts 
narrated in this chapter, were published in the United 



* Marshall's Journal. Wait's American State Papers, vol. iii., p. 
394. 



ENVOY EXTRAORDINARY TO FRANCE. 101 

States, and republished in England. They reached 
Paris the latter part of May, and, naturally enough, 
attracted eager attention. Talleyrand hastened to dis- 
sipate the impressions they were calculated to make. 
Col. Pickering, the Secretary of State, had substituted 
the initials X. Y. Z. for the names of M. Hottinguer, 
M. Bellamy, and M. Hautval, in consequence of a pro- 
mise by the Envoys that they should, in no event, be 
made public. Talleyrand affected an entire ignorance 
of the persons thus designated, and, with cool effrontery, 
addressed a note to Mr. Gerry, requesting their names. 
' I cannot observe without surprise,' he said, ' that in- 
triguers have profited of the insulated condition in 
which the Envoys of the United States have kept 
themselves, to make proposals and hold conversations, 
the object of which was evidently to deceive you.' 
And this was addressed to Mr. Gerry, who had Tal- 
leyrand's own assurance, that M. Bellamy might always 
he relied on; to Mr. Gerry, who had heard the propo- 
sitions of the agents substantially repeated by the 
Minister, and was present when General Pinckney 
told him that his suggestions were considered by the 
Envoys as, in effect, the same that had been made by 
M. Hottinguer and M. Bellamy, the men he now 
styled intriguers, but then did not venture to dis- 
avow.^ 

On the 7th of June, Tlie Redacteur, the official ga- 
zette, contained Talleyrand's observations on the de- 
spatches of the Envoys. They were drawn up with 
infinite art; and were calculated to produce an im- 
pression favorable to the purity of the French Direc- 
tory. He described the despatches as a * deplorable 
monument of credulity and contradictions,' and a pro- 

' Ante, pp. 370. 



102 LIFE OF JOHN MARSHALL. 

vocation ' visibly suggested by the British Govern- 
ment.' Pinckney and Marshall, he said, manifested 
against France prejudices brought from America, or 
imbibed from the nature of the connections which they 
lost no time in forming at Paris ; but Gerry had an- 
nounced more impartiality. ' From this ill-suited 
union, which disclosed dispositions not very concilia- 
tory, there must needs result, and there has, in fact, 
resulted a crooked and embarrassed career on the part 
of those Commissioners; hence their constant aversion 
to do what might reconcile, their eagerness to write 
what might disgust.' ' To come at some accommoda- 
tion, some friendly explanation, frequent communica- 
tions with the Minister of the Exterior were necessary. 
The latter complained publicly that he did not see 
them, and they avowed that he caused them to be 
often informed of this reproach ; but two of the Com- 
missioners, shielding themselves under ceremony, re- 
fused to comply with the desire. Mr. Gerr}^, at length, 
resolved to go, spoke twice with the Minister ; . . . . 
said but little ; and did not venture to decide on any 
thing.' In the meantime, says Talleyrand, they 
thought themselves bound to transmit to the President 
a very voluminous account of their negotiation ; an 
account necessarily filled 'with the despicable manoeu- 
vres of all the intriguers.' ' It will be for ever incon- 
ceivable, that men, authorized to represent the United 
States near the French Republic, could have been for 
an instant deceived by manoeuvres so evidently coun- 
terfeit, and that there should exist a temptation to 
convert the error in this respect into bad faith.* 

Wo have not space to follow the ingenious turns 
and cool assurance of Talleyrand, through this curious 
performance. So disguised are his artifices, and so 
bold his criminations, that one is almost inclined to 



ENVOY EXTRAORDINARY TO FRANCE. 103 

believe that the Envoys had been ' most strangely 
deceived' by Hhe incoherent prating of two intriguers/ 
It is only by again recurring to the facts that the 
reader is disabused of the impression that M. Talley- 
rand is a martyr in the cause of honor and innocence. 
Apprehensions were entertained that the Envoys 
might remain in France until after the arrival there 
of their despatches. * In that case/ wrote Cabot to 
Wolcott, ' they must give up their lives, or contradict 
their communications, or, according to the order of the 
day, pay a deal of money." But Pinckney had left 
Paris on the 19th of April, Gerry it suited the Direc- 
tory to treat with a show of civility, and Marshall 
arrived at New York on the 17th of June. He found 
a high and general indignation among the people at 
the treatment himself and colleagues had received at 
Paris. He was received, wherever he appeared, with 
warmth and enthusiasm. These demonstrations Jef- 
ferson, naturally enough, viewed with extreme jea- 
lousy. The late events had visibly increased the 
strength of the Federalists, and diminished that of 
the Republicans. In a letter to Madison, he mentions 
the arrival of Marshall at New York, says that he has 
postponed his own departure from Philadelphia, in 
order to see if that circumstance would produce any 
new projects, and thus proceeds : — ' No doubt he 
there received more than hints from Hamilton as to 
the tone required to be assumed, yet I apprehend he is 
not hot enough for his friends. Livingston came with 
him from New York. Marshall told him they had no 
idea, in France, of a war with us. That Talleyrand 
sent passports to him and Pinckney, but none to 
Gerry. Upon this Gerry staid, without explaining to 

Federal Administrations, vol. ii., pp 47, 48. 



104 LIFE OF JOHN MARSHALL. 

them the reason.' He wrote, however, to the Presi- 
dent by Marshall, who knew nothing of the contents 
of the letter. So that there must have been a previous 
understanding between Talleyrand and Gerry. 

* Marshall was received here [Philadelphia] with 
the utmost eclat. The Secretary of State and many 
carriages, with all the city cavalry, went to Frankford 
to meet him, and, on his arrival here in the evening, 
the bells rung till late in the night, and immense 
crowds were collected to see and make part of the 
show, which was circuitously paraded through the 
streets before he was set down at the city tavern. 

' All this,' Jefferson characteristically adds, ' was to 
secure him to their views, that he might say nothing 
which would oppose the game they have been playing. 
Since his arrival, I can hear nothing directly from him, 
while they are disseminating through the town things, 
as from him, diametrically opposite to what he said to 
Livingston.' ^ 

Congress being at this time in session, a public din- 
ner was given to him by members of both Houses, 'as 
an evidence of affection for his person, and of their 
grateful approbation of the patriotic firmness with 
which he sustained the dignity of his country during 
his important mission.' 

Marshall now returned to Virginia, (where he was 
received with every demonstration of respect,) and re- 

' Marshall could not have told Livingston this, because Gerry had 
agreed with Talleyrand to remain, had told his colleagues that he in- 
tended to remain, and this, too, before the passports were sent. His 
not receiving a passport had nothing to do with his staying. It would 
have been sent, had he demanded it. 

* Jefferson's Works, vol. iv., p. 249. June 21st, 1798. We 
have quoted Jefferson's letter for the facts which it contains; hia 
conjectures are not so important. 



ENVOY EXTRAORDINARY TO FRANCE. 105 

sumed his labors at the Bar. But his determination 
to withdraw from political life was overcome by the 
clouded state of ajBTairs, and the earnest appeals that 
were made to him, to come forward, at such a junc- 
ture, and engage in the public service. In the next 
chapter we shall view him as a member of Congress. 



CHAPTER IX. 

1799 — 1800. 
MEMBER OF CONGRESS. 

It was the good fortune of Marshall, as we have 
already had occasion to observe, to enjoy the unquali- 
fied respect and esteem of Washington ; and it was a 
circumstance creditable to Washington's successor in 
the Presidency, that he invariably manifested similar 
sentiments towards him, and, at last, placed him in 
that exalted judicial position where, for so long a pe- 
riod, he rendered such signal services, and achieved 
such lasting and honorable fame. 

On the death of Judge Wilson, in the summer of 
1798, Mr. Adams fixed upon Marshall as his succes- 
sor. ' General Marshall or Bushrod Washington,' thus 
he wrote the Secretary of State, ' will succeed Judge 
Wilson, if you have not some other gentleman to pro- 
pose, who, in your opinion, can better promote the 
public honor and interest. Marshall is first in age, 
rank, and public services, probably not second in 
talents.' ^ In a subsequent letter to the Secretary, he 
says, ' The name, the connections, the character, the 
merit, and abilities of Mr. Washington are greatly re- 
spected. But I still think General Marshall ought to 
be preferred. Of the three Envoys, the conduct of 

' Adams' Works, vol. viii., p. 596. September 14th, 1798. 
106 



MEMBER OF CONGRESS. 107 

Marshall alone has been entirely satisfactory, and 
ought to be marked by the most decided approbation 
of the public.^ He has raised the American people in 
their own esteem, and if the influence of truth and 
justice, reason and argument, is not lost in Europe, he 
has raised the consideration of the United States in 
that quarter. He is older at the Bar than Mr. Wash- 
ington; and you and I know by experience that 
seniority at the Bar is nearly as much regarded as it 
is in the army. If Mr. Marshall should decline, I 
should next think of Mr. Washington.'^ The post was 
accordingly offered Marshall; but insurmountable con- 
siderations, he wrote the Secretary of State, obliged 
him to decline it. Subsequently, it was conferred on 
Bushrod Washington. 

One of the reasons, and, perhaps, the chief reason, 
that probably induced Marshall to decline the office 
thus tendered him, was the resolution he had reluc- 
tantly formed to become a candidate for Congress. It 
was at the earnest instance of Washington that he 
thus consented to forego his determination to remain 
at the Bar, and embark on the angry sea of politics. 
*I learnt with much pleasure,' wrote the former to his 
nephew, Bushrod Washington, *from the postscript to 
your letter, of General Marshall's intention to make 
me a visit. I wish it of all things ; and it is from the 
ardent desire I have to see him, that I have not de- 
layed a moment to express it, lest, if he should have 
intended it on his way to Frederic, and hear of my in- 
disposition, he might change his route. I can add, with 
sincerity and truth, that, if you can make it comport 

' Compare letter to Cunningham, of November 7th, 1808. 
» Adams' Works, vol. vui., p. 597. Sept. 26th, 1798. Adams, 
ftt this time, was at Quincy. 



108 LIFE OF JOHN MARSHALL. 

with your business, I should be exceedingly bappy to 
see you along with him. The crisis is important. The 
temper of the people in this State, at least, in some 
places, is so violent and outrageous, that I wish to 
converse with General Marshall and yourself on the 
elections, which must soon come.' ^ 

Marshall and Bushrod Washington accordingly 
visited Mount Vernon, and, while there, the former 
was induced, by the urgent wishes of General Wash- 
ington, to come forward as a candidate for Congress. 
The following anecdote concerning this visit, though 
erroneous as to the time when it occurred, shows that 
there were personal incidents connected with it, apart 
from public considerations, that gave Washington 
much pleasure. ' He was accustomed sometimes to tell 
the following story : — On one occasion, during a visit 
he paid to Mount Vernon while President, he had in- 
vited the company of two distinguished lawyers, each 
of whom afterwards attained to the highest judicial 
situations in this country. They came on horseback, 
and, for convenience, or some other purpose, had be- 
stowed their wardrobe in the same pair of saddle-bags, 
each one occupying his side. On their arrival, wet to 
the skin by a shower of rain, they were shown into a 
chamber to change their garments. One unlocked his 
side of the bag, and the first thing he drew forth was 
a black bottle of whiskey. He insisted that this was 
his companion's repository ; but, on unlocking the 
other, there was found a huge twist of tobacco, a few 
pieces of corn-bread, and the complete equipment of a 
wagoner's pack-saddle. They had exchanged saddle- 
bags with some traveller on the way, and finally made 
their appearance in borrowed clothes, that fitted them 

* Washington's Writings, vol. xi., p. 292. August 27th, 1798 



MEMBER OF CONGRESS. 109 

most ludicrously. The General was highly diverted, 
and amused himself with anticipating the dismay of 
the wagoner when he discovered this oversight of the 
men of law. It was during this visit that Washington 
prevailed on one of his guests to enter into public life, 
and thus secured to his country the services of one of 
the most distinguished magistrates of this or any other 
age." 

The election contest upon which Marshall now en- 
tered was a very severe one. The public feeling was 
in a peculiarly inflamed state, and nowhere more 
so than in Virginia. Attacks on private character, 
imputation of unworthy motives, suspicions and con- 
jectures, were freely employed as instruments of party 
warfiire ; and fortunate was that public character who 
was not more or less assailed by them. Marshall no 
sooner announced himself as a candidate, than he be- 
came a mark for all the shafts of party calumny. One 
of the means used to procure his defeat was the circu- 
lation of a malicious report through the district, that 
Patrick Henry was unfriendly to his election. When 
Mr. Henry was informed of the use that was being 
made of his name, he addressed a letter to his friend 
Archibald Blair; and the following extract will show 
the estimation in which he held the future Chief Jus- 
tice : — 

* General Marshall and his colleagues,' thus he 
wrote, ' exhibited the American character as respect- 
able. France, in the period of her most triumphant 
fortune, beheld them as unappalled. Her threats left 
them as she found them, mild, temperate, firm. Can 
it be thought, that, with these sentiments, I should 

* Paulding's Life of Wasliington, vol. ii., p. 191. 



110 LIFE OF JOHN" MARSHALL. 

utter anything tending to prejudice General Marshall's 
election. Very far from it, indeed. Independently 
of the high gratification I felt from his public Ministry, 
he ever stood high in my esteem as a private citizen. 
His temper and disposition were always pleasant, his 
talents and integrity unquestioned. These things are 
sufficient to place that gentleman far above any com- 
petition in the district for Congress. But when you 
add the particular information and insight which he 
has gained, and is able to communicate to our public 
councils, it is really astonishing that even blindness 
itself should hesitate in the choice. But it is to be ob- 
served, that the efforts of France are to loosen the 
confidence of the people everywhere in the public 
functionaries, and to blacken characters most emi- 
nently distinguished for virtue, talents, and public con- 
fidence ; thus smoothing the way to conquest, or those 
claims of superiority as abhorrent to my mind as con- 
quest, from whatever quarter they may come. 

' Tell Marshall I love him, because he felt and acted 
as a republican, as an American. The story of the 
Scotch merchants and old tories voting for him is too 
stale, childish, and foolish, and is a French finesse ; an. 
appeal to prejudice, not to reason and good sense. . . . 
As to the particular words stated by you, and said to 
come from me, I do not recollect saying them. But, 
certain I am, I never said anything derogatory to 
General Marshall; but, on the contrary, I really 
should give him my vote for Congress, preferably to 
any citizen in the State at this juncture, one only ex- 
cepted, and that one is in another line.' ' 

' Washington's Writings, vol. xi., p, 558, January 8th, 1799. 
General Washington is supposed to be the citizen whom alone Mr. 
Henry would prefer to Marshall, and he, at that time, was in com- 
mand of the army. 



MEMBER OF CONGRESS. Ill 

Another calumny employed to defeat his election is 
disclosed in the following letter from Marshall to 
Washington : — 

*You may possibly have seen/ he says, *a para- 
graph in a late publication, stating that several im- 
portant offices in the gift of the Executive, and among 
others, that of Secretary of State, had been attainable 
by me. Few of the unpleasant occurrences produced 
b\' my declaration as a candidate for Congress (and 
they have been very abundant) have given me more 
real chagrin than this. To make a parade of projQfered 
offices is a vanity, which I trust I do not possess ; but 
to boast of one never in my power would argue a lit- 
tleness of mind at which I ought to blush. I know not 
how the author may have acquired his information, 
but I beg leave to assure you that he never received 
it directly nor indirectly from me. I had no previous 
knowledge that such a publication was designed, or I 
would certainly have suppressed so much of it as re- 
lates to this subject. The writer was unquestionably 
actuated by a wish to serve me, and by resentment at 
the various malignant calumnies which have been so 
profusely bestowed on me. One of these was, that I 
only wished a seat in Congress for the purpose of ob- 
taining some office, which my devotion to the Admin- 
istration might procure. To repel this was obviously 
the motive of the indiscreet publication I so much 
regret. 

' A wish to rescue myself, in your opinion, from the 
imputation of an idle vanity, which forms, if I know 
myself, no part of my character, will, I trust, apologize 
for the trouble this explanation may give you.* ^ But 

' Writings of Washington, vol. xi., p. 424. May 1st, 1799. 



112 LIFE OF JOHN MARSHALL. 

to Washington, who knew him, this explanation was 
unnecessary. ' I am sorry to find,' thus he wrote in 
reply, ' that the publication you allude to should have 
given you a moment's disquietude. I can assure you, 
it made no impression on my mind, of the tendency 
apprehended by you.'^ 

Notwithstanding the persevering and systematic 
efforts that were made to effect a different result; not- 
withstanding the ^ gleam of Federalism in Virginia* 
was fast expiring, Marshall, to the honor of the Rich- 
mond district, be it said, was elected. His majority, 
however, was small ; and that was the only drawback 
to the gratification of his friends. ' The election of 
General Lee and Marshall,' wrote Washington, 'is 
grateful to my feelings. I wish, however, both of 
them had been elected by greater majorities; but they 
are elected, and that alone is pleasing. As the tide is 
turned, I hope it will come in with a full flow ; but 
this will not happen, if there is any relaxation on the 
part of the Federalists.'^ 

Marshall took his seat in Congress at the opening 
of the session, in December, 1799. The state of par- 
ties in the public councils, and the part Marshall was 
thought likely to play there, are thus described in a 
letter from Wolcott to Fisher Ames : — 

' The Federal party,' he says, * is composed of the 
old members who were generally re-elected in the 
Northern, with new members from the Southern 
States. New York has sent an anti-Federal majority; 
Pennsylvania has done the same ; opposition princi- 

' Writings of Washington, vol. xi., p. 424. May 5th, 1799. 
' Ibid., p. 425. May 5th, 1799. Letter to Bushrod Washington. 
The election took place in April, 1799. 



MEMBER OF CONGRESS. 113 

pies are gaining ground in New Jersey and Maryland, 
and, in the present Congress, the votes of these States 
will be fluctuating and undecided. A number of dis- 
tinguished men appear from the southward, who are 
not pledged by any act to support the system of the 
last Congress ; these men will pay great respect to the 
opinions of General Marshall. He is, doubtless, a man of 
virtue and distinguished talents; but he will think much 
of the State of Virginia, and is too much disposed to 
govern the world according to rules of logic. He will 
read and expound the Constitution as if it were a 
penal statute, and will sometimes be embarrassed with 
doubts, of which his friends will not perceive the im- 
portance.' ^ 

The opinion Wolcott thus expressed of Marshall was 
also professed by his political adversaries. They ' al- 
lege that he is a mere lawyer; that his mind has been 
so long trammelled by judicial precedent, so long habi- 
tuated to the quart and tierce of forensic digladiation, 
(as Doctor Johnson would probably have called it,) as 
lo be unequal to the discussion of a great question of 
State.' ^ This sort of criticism will be deemed less sin- 
gular, when we reflect that it has been employed with 
respect to almost all distinguished lawyers who have 
entered political life ; that in England, especially, the 
habits and learning of the Bar have been regarded as 
inconsistent with those bold, unfettered, comprehen- 
sive views that mark the character of the great states- 
man ; and that, besides the evident motive which his 
political opponents had to depreciate his statesmanship, 
Wolcott and the majority of the Cabmet were equally 

' Federal Administrations, vol. ii., p. 314. 
* The British Spy, p. 183, 



114 LIFE OF JOHN MARSHALL. 

liable to undervalue his political sagacity, from the fact 
that he differed with them on a question of policy which 
they deemed of capital importance, namely, the mis- 
sion to France ; he approving, and they strongly dis- 
approving it. Nevertheless, when it is considered that 
Marshall, throughout his long judicial career, invaria- 
bly maintained what has been termed the liberal con- 
struction of the Constitution, and that the bias of his 
mind was to general principles rather than to technical 
distinctions, it must strike the reader as a little odd 
that he should have been thought, at any period of his 
public life to have brought to the exposition of that 
instrument narrow rules, or limited views. At the same 
time, it may be admitted that his peculiar excellence 
was judicial rather than political; that he was better 
fitted to explore the mazes of ingenious argument, to 
pronounce clear, impartial judgment on the systems 
and measures of others, than to devise systems and 
measures himself; and that the forming hand of na- 
ture intended him for a great magistrate, rather than 
a great political leader. 

The answer to the President's speech was drafted 
by Marshall, who was Chairman of the Committee ap- 
pointed for that purpose. It was a delicate task. The 
Federalists were divided in sentiment as to the pro- 
priety of the mission to France ; those from the 
Northern States, for the most part, denouncing it, 
while the new members from the South, coming from 
a region of country where the anti-Federalists were 
rapidly gaining the ascendency, and where they had 
been beset by the popular cry, that the country was 
being hurried into war with France in consequence of 
British influence, and that peace was attainable, if 
right steps were taken, approved it. In this contra- 
riety of opinion, Marshall had a difficult duty to per- 



MEMBER OF CONGRESS. 115 

form, and that lie failed to please all is not singular. 
In guarded, moderate language, the address expressed 
approbation of the mission, and, in that form, 'passed 
with silent dissent.'' 

When we reflect how solicitous Washington was, 
that Marshall should enter Congress, and how gratified 
he was at his election, we cannot fail to be struck with 
the circumstance, that it was among the first of his 
Congressional duties, to announce the death of that 
great man, whose loss the whole nation deplored. The 
rumor of Washington's decease reached Philadelphia 
on the 18th of December. On that day, Marshall, "^in 
a voice that bespoke the anguish of his mind, and a 
countenance expressive of the deepest regret,' rose, 
and after stating the calamity that had probably be- 
fallen the country, moved an adjournment of the 
House. The next day, with 'suppressed voice, and 
deep emotion,' he addressed the Chair as follows : — 

' Mr. Speaker : — The melancholy event which was 
yesterday announced with doubt, has been rendered 
but too certain. Our Washington is no more ! The 
Hero, the Sage, and the Patriot of America — the man 
on whom, in times of danger, every eye was turned, 
and all hopes were placed — lives now only in his own 
great actions, and in the hearts of an affectionate and 
afflicted people. 

' If, Sir, it had not been usual openly to testify re- 
spect for the memory of those whom Heaven had 
selected as its instruments for dispensing good to men, 
yet such has been the uncommon worth, and such the 
extraordinary incidents which have marked the life 

' Federal Administrations, vol. ii., p. 314. See this address in 
Benton's Debates of Congress, vol. ii., p. 431. 



116 LIFE OF JOHN MARSHALL. 

of him whose loss we all deplore, that the whole Ame- 
lican nation, impelled by the same feelings, would call 
with one voice for a public manifestation of that sor- 
row which is so deep and so universal. 

' More than any other individual, and as much as to 
any one individual was possible, has he contributed to 
found this, our wide-spreading empire, and to give to 
the Western world its independence and freedom. 
Having effected the great object for which he was 
placed at the head of our armies, we have seen him 
converting the sword into the ploughshare, and volun- 
tarily sinking the soldier in the citizen.' 

'■ Having been twice unanimously chosen the Chief 
Magistrate of a free people, we see him, at a time when 
his re-election, with the universal suffrage, could not 
have been doubted, affording to the world a rare in- 
stance of moderation, by withdrawing from his high 
station to the peaceful walks of private life. 

* However the public, confidence may change, and 
the public affections fluctuate with respect to others, 
yet, with respect to him, they have in war and in 
peace, in public and private life, been as steady as his 
own firm mind, and as constant as his own exalted 
virtues. 

* Let us then, Mr. Speaker, pay the last tribute of 
respect and affection to our departed friend — let the 
Grand Council of the nation display those sentiments 
which the nation feels. 

* For this purpose, I hold in my hand some resolu- 
tions, which I will take the liberty to offer to the 
House.' ^ 



' These were the resolutions drafted by General Lee ; the last of 
which described Washington as ' first in war, first in peace, and first 
in the hearts of his countrymen.' 



MEMBER OF CONGRESS. 117 

To every capital measure of Washington's Admin- 
istration, Marsliall, both in public and private life, had 
given an ardent and able support; to the Administra- 
tion of John Adams he gave a similar support, unless, 
indeed, we except his approval of the mission to 
France, which was a measure of the President's, a 
measure disapproved by his Cabinet, and the leading 
Federal members of Congress, and, also, his vote to 
repeal the obnoxious clause of the sedition act.^ This 
act had everywhere, and particularly in Virginia, en- 
countered the most violent hostility. It was an ex- 
ceedingly impolitic measure, and Marshall, during the 
canvass that resulted in his election, had announced 
his purpose to vote for its repeal ; not because it was 
unconstitutional, but because it was inexpedient. That 
pledge, he now redeemed. 

He did not often mingle in the debates, while he 
remained a member of the House ; but when he did, 
he made an impression upon his auditors, not easily 
effaced. His career in Congress was especially marked 
by his speech in the celebrated case of Jonathan Rob- 
bins ; a speech which forever settled the questions of 
constitutional law involved in it. Thomas Nash, who 
assumed the name of Jonathan Bobbins, and claimed 
to be a citizen of the United States, impressed by the 
British, was committed to jail, in Charleston, South 
Carolina, at the instance of the British Consul, on sus- 
picion of having been an accomplice in piracy and 
murder on board the British frigate Hermione. The 
English Minister having made a requisition to the 
President for the delivery of Nash as a fugitive from 
justice, under a provision of the Jay treaty, the latter 
advised and requested the Federal judge at Charleston 

' We refer to the clause relating to seditious libels. 



118 LIFE OF JOHN MARSHALL. 

to deliver him up, provided such evidence of his crimi- 
nality was produced as, by the laws of the United 
States, or of South Carolina, would justify his commit- 
ment for trial, if the offence had been committed 
within the jurisdiction of the United States. Nash 
was accordingly delivered to the British Consul, was 
afterwards tried by a court-martial, found guilty of 
mutiny and murder, and executed. He acknowledged, 
before his death, that he was an Irishman. 

The delivery of Nash to the British authorities occa- 
sioned a great outcry. Before the people, it was asserted 
Lhat he was an American citizen, had been impressed, 
and was now surrendered as a murderer, for having 
committed a homicide in the attempt to liberate him- 
self from illegal confinement. But, in Congress, it was 
admitted that he was an Irishman, and guilty of the 
crimes for which he suffered death. The ground of 
complaint was, that the question whether he should 
be given up, belonged exclusively to the courts, and, 
consequently, the advice and request of the President 
to have him delivered up, upon the conditions we 
have stated, was a dangerous interference of Execu- 
tive with judicial authority. 

In opposition to this view of the matter, and in de- 
fence of the course pursued by the President, Marshall 
addressed the House. His speech is strictly argumen- 
tative, and clearly demonstrates three propositions. 

First. That the case of Nash, as stated to the Presi- 
dent, was completely within the meaning of the ren- 
dition clause of the Jay Treaty. 

Secondly. That it constituted a question for Execu 
tive and not judicial decision. 

Thirdly. That, in deciding it, the President was 
not chargeable with an interference with judicial func- 
tions. 



MEMBER OF CONGRESS. 119 

The train of reasoning that led hirn to these results 
elicited, at the time, the highest admiration, and has, 
ever since, been equally applauded. We have space 
for only a single extract. It relates, however, to an 
observation which had been made in the course of the 
debate, and is not directly connected with the line of 
his argument. But it contains sentiments which were 
so well calculated to interest the public feelings ; senti- 
ments, too, so worthy of him, that we have selected 
it for quotation. 

* The gentleman from Pennsylvania [Mr. Gallatin] 
has said that an impressed American seaman, who 
should commit homicide for the purpose of liberating 
himself from the vessel in which he was confined, 
ought not to be given up as a murderer. In this I 
concur entirely with that gentleman. I believe the 
opinion to be unquestionably correct, as are the rea- 
sons he has given in support of it. I never heard any 
American avow a contrary sentiment, nor do I believe 
a contrary sentiment can find a place in the bosom of 
an American. I cannot pretend, and do not pretend 
to know the opinion of the Executive on this subject, 
because I have never heard the opinions of that de- 
partment; but I feel the most perfect conviction, 
founded on the general conduct of the Government, 
that it could never surrender an impressed American 
to the nation which, in making the impressment, com- 
mitted a national injury. This belief is in no degree 
shaken by the conduct of the Executive in this par- 
ticular case. . . . 

*The President has decided that a murder com- 
mitted on board a British frigate on the high seas, is 
within the jurisdiction of that nation, and, conse- 
quently, within the twenty-seventh article of its treaty 



120 LIFE OF JOHN MARSHALL. 

with the United States. He therefore directed Tliomas 
Nash to be delivered to the British Minister, if satis- 
factory evidence of the murder should be adduced. 
The sufficiency of the evidence was submitted entirely 
to the Judge. If Thomas Nash had committed a mur- 
der, the decision was that he should be surrendered to 
the British Minister ; but if he had not committed a 
murder, he was not to be surrendered. Had Thomas 
Nash been an impressed American, the homicide on 
board the Hermione would, most certainly, not have 
been a murder. 

' The act of impressing an American, is an act of 
lawless violence. The confinement on board a vessel 
is a continuation of the violence, and an additional 
outrage. Death committed within the United States, 
in resisting such violence, is not murder, and the per- 
son giving the wound cannot be treated as a murderer. 
Thomas Nash was only to be delivered up to justice 
on such evidence as, had the fact been committed 
within the United States, would be sufficient to have 
induced his commitment and trial for murder. Of 
consequence, the decision of the President was so ex- 
pressed, as to exclude the case of an impressed Ame- 
rican liberating himself by homicide.' 

Though the case of Nash had been made a party 
question, so conclusive was the argument in support of 
the President's course, that many of the Democratic 
members voted in its justification, and the resolutions 
censuring it were lost by a vote of sixty-one to thirty- 
five. Out of doors, too, the fierce invective and denun- 
ciation that had been called forth by a misapprehen- 
sion of the case, were silenced, and the public opinion 
was rescued from the prejudices that had surrounded 
it. 



MEMBER OF CONGRESS. 121 

Congress adjourned on the 14th of May, and Mar- 
shall having been appointed Secretary of State, re- 
signed his seat in that body. We have seen with what 
difficulty he was elected ; and, as an evidence of the 
strength of the current that was setting against the 
Federalists, we may mention that, at the subsequent 
election, his place was supplied by a Republican. ' Mr. 
Mayo, who was proposed to succeed General Marshall, 
lost his election by an immense majority, was grossly 
insulted in public by a brother-in-law of the late Sena- 
tor Taylor, and was afterwards wounded by him in a 
duel.'* 

' Wolcott to Ames, August 10th, 1800. Federal Administrations, 
vol. u., pp. 400, 404. 



CHAPTER X. 

1800-1801. 
SECRETARY OF STATE. 

The Cabinet of President Adams, as described at 
the time, was an exceedingly disjointed one. They 
were, as he afterwards said, * a legacy of Secretaries 
left him by General Washington.' The Secretary of 
State was Timothy Pickering ; of the Treasury, Oliver 
Wolcott ; of War, James M'Henry ; of the Navy, Ben- 
jamin Stoddart;' and the Attorney-General was Charles 
Lee. 

The first, Mr. Adams has described with character- 
istic point, and in terms which, it has been observed, 
would be equally applicable to himself. * He [Mr. 
Pickering] is, for anything I know, a good son, hus- 
band, father, grandfather, brother, uncle, and cousin ; 
but he is a man in a mask, sometimes of silk, some- 
times of iron, and sometimes of brass; and he can 
change them very suddenly, and with some dexterity.' 
' He is extremely susceptible of violent and inveterat^e 
prejudices ; and yet, such are the contradictions to be 
found in human characters, he is capable of very sud- 
den and violent transitions from one extreme to an op- 
posite extreme. Under the simple appearance of a 

' Stoddart was appointed by Mr. Adams ; tlie Navy Department 
being created after his accession to the Presidency. 
122 



SECRETARY OF STATE. 123 

hald head and straigld hair, and under professions of 
profound republicanism, he conceals an ardent ambi- 
tion, envious of every superior, and impatient of obscu- 
rity. I always think of a coal-pit, covered over with 
red earth, glowing within, but unable to conceal its 
internal heat, for the interstices which let out the 
smoke, and now and then a flash of flame.' 

Wolcott, though not belonging to the highest grade 
of public character, was a man of abilities ; energetic, 
ardent, and sagacious. He administered the affairs of 
the Treasury with great prudence, and graced the 
position he occupied. 

M'Henry, though * sensible, judicious, well-informed, 
of an integrity never questioned, of a temper which, 
though firm in the support of principles, had too much 
moderation and amenity to offend by the manner of 
doing it,' ' did not possess the peculiar qualifications 
required for the duties of the War Department. He 
wanted skill in the details of administration. ^ The 
diffidence which he feels,' wrote Wolcott, 'exposes his 
business to delays, and he sometimes commits mis- 
takes which his enemies employ to impair his in- 
fluence.' ^ 

The Secretary of the Navy, and the Attorney-Gene- 
ral, are thus described, and by the same hand : — 

' Mr. Stoddart,' he says, ' is a man of great sagacity, 
and conducts the business of his Department with suc- 
cess and energy; he means to be popular; he has 
more of the confidence of the President than any offi- 

' Thus described by Hamilton. 

* Wolcott to Ames, December 29th, 1799. Federal Administra- 
tions, vol. ii., p. 315. 



124 LIFE OF JOHN MARSHALL. 

cer of the Government. He professes to know less 
than h(^ really knows, and to be unequal to the task 
of forming or understanding a political system. He 
will have much influence in the Government, and 
avoid taking his share of the responsibility. 

' Mr. Lee is a sensible man, and I think a candid 
man, who thinks much of Virginia. He fears disorders 
and a dissolution of the Union. He frequently dissents 
to what is proposed by others, and approves the senti- 
ments of the President; but, with respect to measitreSy 
will rarely take an active partV 

The differences between the President and his three 
principal Secretaries, Pickering, M'Henry, and Wol- 
cott, respecting the mission to France, and the acrimo- 
nious feelings growing out of those differences, led to 
important changes in the Cabinet. M'Henry was 
forced to resign, and Pickering, refusing to resign, was 
dismissed. Wolcott was retained, it was said, because 
the President feared derangements in the affairs of the 
Treasury f but the more probable cause is, that he was 
not informed as to the extent of his hostility. Wol- 
cott, however, voluntarily resigned before the close of 
the year. 

M'Henry resigned on the 6th of May, 1800; the re- 

' Wolcott to Ames, December 29^th, 1799. Federal Administra- 
tions, vol. ii., p. 315. 

' M'Henry to M'Henry, May 20th, 1800. Ibid., pp. 346, 348. 
It must be admitted that Adams had just cause for the removal of his 
obnoxious Secretaries. He certainly was entitled to the aid of a 
Cabinet who sympathized with his views. But Pickering, Wolcott, 
fy)d M'Henry not only condemned his policy, but were personally op- 
posed to him. Pickering hated him, openly denounced him, and all 
desired to get rid of him. Mutual confidence was gone. The won- 
der is, considering Adams' impetuous temperament, that they were 
not dismissed at an earlier moment. 



SECRETARY OF STATE. 125 

signation to take effect on the 1st of June. On the 
7th, Marshall was nominated as his successor. * He 
was never consulted, and had no intimation that 
M' Henry was to retire.'^ This appointment he do 
clined ; but, on the 13th, accepted the Department of 
State, from which Pickering had been removed the 
day before. The War Department was filled by Mr. 
Dexter. 

The accession of Marshall to the Cabinet, under the 
circumstances we have described, caused not the 
slightest diminution of friendship between Pickering 
and himself, nor the least abatement of confidence and 
respect on the part of those who sympathized with the 
discarded Secretaries. Even Wolcott applauds his 
acceptance of the post assigned him., and bears testi- 
mony to the importance of his services. ' Let me not 
be suspected,' thus he writes, ' of entertaining the 
harsh opinion that the gentlemen lately appointed to 
office are not independent men. I highly respect and 
esteem them both, and consider their acceptance of 
their offices as the best evidence of their patriotism. . . 
I consider General Marshall and Mr. Dexter as more 
than Secretaries — as State Conservators — the value 
of whose services ought to be estimated, not only by 
the good they do, but by the mischief they have pre- 
vented. If I am not mistaken, however. General Mar- 
shall will find himself out of his proper element.'^ 

'But,' says Mr. Adams, 'my new Minister, Marshall, 
did all to my entire satisfaction,' and he might have 
added, to the public satisfaction also. His instructions 
to Mr. King, our Minister at the Court of St. James, 

' Wolcott to Ames, August 10th, 1800. Federal Administrations, 
vol. ii., pp. 400, 402. 
* Ibid. 



126 LIFE OF JOHN MARSHALL. 

respecting the claims of British creditors, and neutral 
rights, have always, deservedly, held high rank in the 
roll of American State papers. The pending negotia- 
tions with France threatened to compromit us with 
England, as the negotiations with England six years 
before had threatened to involve us in war with 
France. But this pretension, that one nation may in- 
terfere with the concerns of another nation, equally 
independent and sovereign as itself, was never submit- 
ted to by the United States. The Jay treaty was rati- 
fied in spite of the clamors and threats of France, and 
the negotiations with France were prosecuted to a suc- 
cessful conclusion, notwithstanding the jealousy of Eng- 
land. 'The United States,* said Marshall, in a despatch 
to Mr. King, ' do not hold themselves in any degree 
responsible to France or to Great Britain for their ne- 
gotiations with the one or the other of those Powers ; 
but they are ready to make amicable and reasonable 
explanations with either. The aggressions sometimes 
of one and sometimes of another belligerent Power, 
have forced us to contemplate and prepare for war as 
a probable event. We have repelled, and we will con- 
tinue to repel, injuries not doubtful in their nature, 
and hostilities not to be misunderstood. But this is a 
situation of necessity, not of choice. It is one in which 
we are placed, not by our own acts, but by the acts of 
others, and which we change as soon as the conduct 
of others will permit us to change it. 

The Presidential election in 1800 was conducted 
with great violence, and resulted, as is well known, in 
the defeat of Mr. Adams. His competitor was the only 
public character, it is believed, towards whom Marshall 
ever imbibed and retained feelings of personal hos- 
tility. He had no confidence either in his politics or 
morals. When, therefore, it was ascertained that the 



SECRETARY OF STATE. 127 

House of Representatives would be compelled to choose 
between Jefferson and Burr for President, he inclined 
to the opinion that the Federalists should support the 
latter. A letter from Hamilton, however, portraying 
the character of Burr, presented the matter in a dif- 
ferent light. ^ Being no longer in the House of Repre- 
sentatives,' thus he wrote Hamilton, 'and, conse- 
quently, compelled by no duty to decide between 
them, ray own mind had scarcely determined to which 
of these gentlemen the preference was due. To Mr. 
Jefferson, whose political character is better known 
than that of Mr. Burr, I have felt almost insuperable 
objections. His foreign prejudices seem to me totally 
to unfit him for the Chief Magistracy of a nation, which 
cannot indulge those prejudices without sustaining deep 
and permanent injury. In addition to this solid and 
immovable objection, Mr. Jefferson appears to me to 
be a man who will embody himself with the House of 
Representatives. By weakening the oflBce of President, 
he will increase his personal power. He will diminish 
his responsibility, sap the fundamental principles of 
the Government, and become the leader of that party 
which is about to constitute the majority of the Legis- 
lature. The morals of the author of the letter to Maz- 
zei cannot be pure. "With these impressions concern- 
ing Mr, Jefferson, I was, in some degree, disposed to 
view with less apprehension any other characters, and 
to consider the alternative now offered us as a circum- 
stance not to be entirely neglected. 

' Your representation of Mr. Burr, with whom I am 
entirely unacquainted, shows that from him still 
greater danger than even from Mr. Jefferson may be 
apprehended. Such a man as you describe is more to 



128 LIFE OF JOHN MARSHALL. 

be feared, and may do more immediate, if not greater, 
mischief. Believing that you know him well, and are 
impartial, my preference would certainly not be for 
him ; but I can take no part in this business. I can- 
not bring myself to aid Mr. Jefferson. Perhaps respect 
for myself should, in my present situation, deter me 
from using any influence (if, indeed, I possess any) in 
support of either gentleman. Although no considera- 
tion could induce me to be the Secretary of State while 
there was a President whose political system I believed 
to be at variance with my own, yet this cannot be so 
well known to others, and it might be suspected that 
a desire to be well with the successful candidate had, 
in some degree, governed my conduct.' ' 

With such sentiments, and a line of conduct, uniform 
and consistent, in support of Federal measures, unless 
his concurrence with the President respecting the mis- 
sion to France, and his opposition to the sedition act, 
be exceptions, it was yet reported, before the result of 
the election was known, that, whatever the event, he 
would not voluntarily retire from his post. * I have 
been told,' wrote M^Henry, that ' Mr. Marshall has sig- 
nified that he does not mean to resign in the event of 
Mr. Jefferson being elected President, but to wait most 
patiently the development of his politics. Will there, 
my friend, be so great an antipathy between the poli- 
tics of the two gentlemen, that one of them must fly 
off from the other?' ^ To this Wolcott thus replied : — 
' The issue of the election is uncertain, but if Mr. Jef- 
ferson should be chosen, Mr. Marshall will certainly 

' Marshall to Hamilton, January 1st, 1801. Hamilton's Works, 
vol. vi., p. 501. 

* M'llcnry to Wolcott, November 9th, 1800. Federal Administra- 
tions, vol. ii., p. 445. 



SECRETARY OF STATE. 129 

retire. The opposition of sentiment between these 
men appears to be decided, and, I believe, is unchange- 
able; what you have heard is, therefore, a mistake.'^ 

Marshall continued to discharge the duties of the 
State Department until the close of Mr. Adams' Ad- 
ministration, on the 4th of March, 1801. He had, 
however, in the meantime, as we shall see in the next 
chapter, been appc'nted Chief Justice of the United 
States. 

» November 26th, 1800. Ibid., p. 447. 



CHAPTER XL 

1801 — 1835. 
CHIEF JUSTICE OF THE UNITED STATES. 

Upon the resignation of Chief Justice Ellsworth, Jay 
was nominated as his successor ; but he declined the 
appointment. A very general expectation was then 
entertained that the vacant post would be tendered to 
Judge Patterson. He stood high in the estimation of 
the Bar for learning and abilities ; nor was the Presi- 
dent insensible to his merits. But Mr. Adams objected 
to his nomination, it is said, lest it might wound the 
feelings of Judge Cushing, an old friend, and the senior 
member of the Court. Looking, therefore, beyond the 
bench for a suitable person to fill the office, his ' prompt 
and spontaneous choice' fell upon John Marshall. 
Accordingly, on the 31st of January, 1801, he re- 
ceived the appointment of Chief Justice of the United 
States. 

He had now attained the age of forty-five. His per- 
sonal appearance at this period of his life has been 
thus described — ' The Chief Justice of the United 
States is, in his person, tall, meagre, emaciated : his 
muscles relaxed, and his joints so loosely connected, 
as not only to disqualify him, apparently, for any vig- 
orous exertion of body, but to destroy everything like 
harmony in his air and movements. Indeed, in his 

130 



CHIEF JUSTICE OF UNITED STATES. 131 

whole appearance and demeanor ; dress, attitudes, ges- 
ture; sitting, standing, or walking; he is as far removed 
from the idolized graces of Lord Chesterfield, as an^ 
othei gentleman on earth. His head and face are 
small, in proportion to his height; his complexion 
swarthy; the muscles of his face, being relaxed, make 
him appear to be fifty years of age, nor can he be 
much younger. His countenance has a faithful expres- 
sion of great good humor and hilarity; while his black 
eyes, that unerring index, possess an irradiating spirit 
which proclaims the imperial powers of the mind that 
sits enthroned within.' ' « 

Several years later, Judge Story, then a young man 
of thirty, who had gone to Washington to argue the 
case of Fletcher v. Peck,^ communicated to a friend 
the following description of the Chief Justice : — 

' Marshall,' he says, ' is of a tall, slender figure, not 
graceful nor imposing, but erect and steady. His hair 
is black, his eyes small and twinkling, his forehead 
rather low, but his features are, in general, harmo- 
nious. His manners are plain, yet dignified ; and an 
unaffected modesty diffuses itself through all his ac- 
tions. His dress is very simple, yet neat; his language 
chaste, but hardly elegant; it does not flow rapidly, 
but it seldom wants precision. In conversation, he is 
quite familiar, but is occasionally embarrassed by a 
hesitancy and drawling. His thoughts are always 
clear and ingenious, sometimes striking, and not often 
inconclusive ; he possesses great subtlety of mind, 
but it is only occasionally exhibited. I love his laugh 
— it is too hearty for an intriguer — and his good tem- 

' The British Spy, p. 178 ^ Cranch, vol. vi., p. 137. 



132 LIFE OF JOHN MARSHALL. 

per and vinwearied patience are equally agreeable on 
the Bench and in the study. His genius is, in my 
opinion, vigorous and powerful, less rapid than discri- 
minating, and less vivid than uniform in its light. He 
examines the intricacies of a subject with calm and 
persevering circumspection, and unravels the myste- 
ries with irresistible acuteness. He has not the majesty 
and compactness of thought of Dr. Johnson ; but, in 
subtle logic, he is no unworthy disciple of David 
Hume.'\ 

* * There is no man in the Court that strikes me like 
Marshall,' wrote Daniel Webster when serving as a 
member of Congress from New Hampshire. ' He is a 
plain man, looking very much like Col. Adams, and 
about three inches taller. I have never seen a man 
of whose intellect I had a higher opinion." And the 
impression thus early made upon Mr. Webster was 
confirmed and strengthened by his subsequent prac- 
tice in the Supreme Court. Alluding to the com 
mon expression of the Chief Justice, ' it is admitted,' 
he once remarked to Judge Story, * when Judge Mar- 
shall says, it is admitted. Sir, I am preparing for a 
bomb to burst over my head, and demolish all my 
points.'^ 

' When Marshall first came to the Bench, his distin- 
guished talents were known and recognized; but as 
time advanced, and his abilities were more conspicu- 

' Story's Life and Letters, vol. i., p. 166. Letter to Fay, February 
25th, 1808. 

* Private Correspondence of Daniel Webster, vol. i., p. 243. Letter 
to Ezekiel Webster, March 28th, 1814. 

* Story's Life and Letters, vol. ii., p. 505. 



CHIEF JUSTICE OF UNITED STATES. 133 

ously exhibited, and the winning graces of his daily 
life more generally observed, he came to be regarded 
by the Bar and the country with reverence and affec- 
tion. If we except Washington, it may be safely 
asserted, that no American citizen, either in public or 
private life, has been so universally beloved and 
esteemed. He occupied the post of Chief Justice 
during the long period of thirty-four years, and thirty- 
two volumes of reports, in which his decisions are col- 
lected and preserved, attest the extent, variety, and 
importance of his labors. In all coming time, the stu- 
dent of international and constitutional jurisprudence 
will there discover that intellectual power, that depth 
of investigation, and wisdom of decision, which gave 
him such a commanding position among the jurists of 
his time. 

He combined, in a remarkable degree, the qualities 
that constitute a great magistrate j a mind which no 
sophistry or subtlety could mislead ; a firmness that 
nothing could shake, untiring patience, and spotless 
integrity. In legal acquirements, indeed, he has been 
surpassed by others. He was more familiar with prin- 
ciples than cases, and more 'knowing' than 'learned.' 
' His mind,' said a gifted cotemporary, ' is not very 
richly stored with knowledge ; but it is so creative, so 
well organized by nature, or disciplined by early edu- 
cation, and constant habits of systematic thinking, that 
he embraces every subject with the clearness and faci- 
lity of one prepared by previous study to comprehend 
and explain it. So perfect is his analysis, that he ex- 
tracts the whole matter, the kernel of inquiry, un- 
broken, clean, and entire. In this process, such are 
the instinctive neatness and precision of his mind, that 
no superfluous thought, or even word, ever presents 
itself, and still he says everything that seems appro- 



134 LIFE OF JOHN MARSHALL. 

priate to the subject.'' It was the rare faculty which 
he possessed, of detecting intuitively, as it were, the 
decisive point of a case, that particularly distinguished 
him. ^ It was matter of surprise,' says Judge Story, 
Ho see how easily he grasped the leading principles of 
a case, and cleared it of all its accidental incumbrances ; 
how readily he evolved the true points of the contro- 
versy, even when it w^as manifest, that he never before 
had caught even a glimpse of the learning, upon which 
it depended.'' ' 

It has been said of Fox, that, owing to his want of 
extensive information, his conversation degenerated 
into argument. He challenged propositions, and dis- 
cussed facts, in order to fix and satisfy his own mind. 
For a similar reason, perhaps, Marshall courted and 
delighted in the discussions of the Bar. ' He was soli- 
citous,' says the authority we have just quoted, ^ to 
hear arguments; and not to decide causes without 
them. And no Judge ever profited more by them. 
No matter whether the subject was new or old ; fami- 
liar to his thoughts, or remote from them; buried 
under a mass of obsolete learning, or developed for the 
first time yesterday; whatever was its nature, he 
courted argument, nay, he demanded it.'^ And, says 
Mr. Binney, 'whether the argument was animated or 
dull, instructive or superficial, the regard of his ex- 
pressive eye was an assurance that nothing that ought 
to afiect the cause was lost by inattention or indifier- 
ence; and the courtesy of his general manner was only 
so far restrained on the Bench, as was necessary for the 
dignity of oflBce, and for the suppression of familiarity,' * 

' Sketches and Essays of Public Characters, by Francis W. Gilmer. 

• Discourse on Marshall, p. 70. 

» Ibid. 

^ Eulogy on John Marshall, p. 58. 



CHIEF JUSTICE OF UNITED STATES. 135 

He never evaded, nor attempted to evade the force of 
an opposing argument. He met it fairly, gave it its 
due weight, and then exposed its fallacy, or inapplica- 
bility, with irresistible cogency. ' Perhaps no judge 
ever excelled him in the capacity to hold a legal pro- 
position before the eyes of others in such various forms 
and colors. It seemed a pleasure to him to cast the 
darkest shades of objection over it, that he might show 
how they could be dissipated by a single glance of 
light. He would, by the most subtle analysis, resolve 
every argument into its ultimate principles, and then, 
with a marvellous facility, apply them to the decision 
of the cause.'* 

It has been remarked, that no judge ever profited 
more from argument; and it is not, perhaps, diverging 
into the circle of exaggeration, to say, that no Bar was 
ever more capable of aiding the mind of the Bench, 
than the Bar of the Supreme Court, in the time of 
Chief Justice Marshall. 

Massachusetts was there represented by Dexter, a 
man of original power, who brought to the discussions 
of the forum something more than the learning of the 
lawyer; a comprehension that grasped the very foun- 
dations of all law, and a force of argument and illus- 
tration that riveted all minds;^ and Webster, eminent 
for his powers of argument and eloquence, learned in 

' Story's Discourse, p. 69. 

* Mr. Dexter depended much more upon the suggestions and de- 
ductions of his own mind than upon the learning of the books. It 
has been said, that he ' often found himself sustained by the autho- 
rity of a Scott or a Mansfield, when he was not aware that he was 
treading in the footsteps of those great jurists.' He was, undoubt- 
edly, one of the ablest advocates that has ever appeared at the Ame- 
rican Bar. 



136 LIFE OF JOHN MARSHALL. 

the pr'nciples of the common law, strong, compact, 
and massive.' 

New York sent there, along with Hoffman, Wells, 
and Ogden, — Emmett and Oakly ; the one possessing a 
mind of great activity, vigor, and resource, and a heart 
full of the springs of an affecting eloquence ; and the 
other, with an intellect so naturally logical, and so 
adapted to reasoning upon legal subjects, that, without 
the aid of profound learning, he rose to a high grade 
of distinction as a lawyer, and discharged the duties 
of Chief Justice of New York with an ability that 
adorned even the seat that had been so long and emi- 
nently filled by a Kent. 

Pennsylvania supplied a Tilghman, * strong, clear, 
pointed, and logical ;' ^ a Rawle, precise, perspicuous, 
and accurate, but with a mind better adapted, perhaps, 
to explore the niceties of the law than firmly to grasp 
its more enlarged principles; an IngersoU, learned and 
laborious, but diffuse and tedious ; a Duponceau, dili- 
gent, acute, and ingenious ; a Hopkinson, an able law- 
yer, and a man of liberal principles and culture; a Ser- 
geant, distinguished for the vigor and grasp of his 
mind ; together with Horace Binney whose learn- 
ing and abilities were universally acknowledged. 

Maryland asserted a high, and, probably, a pre-emi- 
nent place at that Bar, in the persons of Luther Mar- 
tin, William Pinkney, and Robert G. Harper. Jeffer- 
son termed the former, during the progress of Burr's 

' A very comprehensive and candid estimate of 'Daniel Webster 
as a jurist,' will be found in a pamphlet, under that title, which con- 
tains an Address to the Law Students at Cambridge, by the Hon. 
Joel Parker, LL.D. 

* Judge Story. See also a notice of Tilghman, by Judge Duncan, 
in Lyle v. Richards, in Sergeant & Rawle's Reports, vol. ix, 



CHIEF JUSTICE OF UNITED STATES. 137 

trial, ' an impudent Federal bull-dog,' a description 
suggi^stive of the pluck, vigor, and strength, that dis- 
tinguished him. Nature had given hini a mind of great 
force; and deep study had stored it with profound 
learning. His uncommon powers, however, were not 
always at command, and, before he could concentrate 
them upon his objects, he was desultory, wandering, 
and inaccurate. 

Pinkney was vain, artificial, arrogant, and overbear- 
ing; but, in those qualities that constitute the great 
lawyer and advocate, he was unequalled, certainly not 
surpassed by any of his cotemporaries. His talents, 
powerful from nature, and cultivated by learning, were 
stimulated and excited by an ambition that never 
paused in the pursuit of professional fame. Chief Jus- 
tice Marshall said, that he never knew his equal as a 
reasoner — so clear and luminous was his method of 
argumentation.' With a harsh and feeble voir.e, with 
a manner vehement, nay, almost boisterous; 'yet, 
notwithstanding these defects,' says Judge Story, ' such 
is his strong and cogent logic, his elegant and perspi- 
cuous language, his flowing graces, and rhetorical 
touches, his pointed and persevering arguments, that 
he enchants, interests, and almost irresistibly leads 
away the understanding.' ^ 

Harper was an able lawyer, a graceful orator, and 
united, in his forensic efforts, argument and eloquence 
with admirable felicity. 

Virginia furnished fit representatives of her genius 
in Wickham, Leigh, Nicholas, and the buoyant and 
gifted Wirt, who combined, not, perhaps, in exact pro- 
portions, the great and the graceful, and enforced his 

' Story's Life and Letters, vol. ii., p. 494. 

^ Ibid., vol. i., p. 217. Letter to Mrs. Story, March 5th, 1812. 



138 LIFE OF JOHN" MARSHALL. 

carefully prepared arguments with an attractive and 
persuasive oratory. 

These were the men, with others, among the living 
and the dead, who graced the Bar, and enlightened 
the wisdom of the Court over which presided Chief 
Justice Marshall. Assisted by their learning, their 
investigations, and arguments, his judicial career fur- 
nishes a series of closely reasoned decisions which 
stand, and will forever stand, enduring monuments of 
his intellectual power. His conclusions may not always 
command assent, but the force of his reasoning cannot 
fail to be felt. Seversil of these decisions, of a more in- 
teresting character, perhaps, than the others, though 
the ability they display is characteristic of them all, 
will now claim our attention. It should be observed, 
however, that it was more particularly in the de- 
partment of constitutional law that tlie influence of 
Chief Justice Marshall, in the decisions of the Supreme 
Court, was most marked and observable. ' When it 
came to the exposition of the Constitution, his col- 
leagues on the Bench, learned, able, and distinguished 
as they were, submitted to his superior wisdom, and 
the impress of his mind is indelibly stamped on their 
adjudications. His opinions as to the scope of that in- 
strument, the extent of the powers conferred by it, and 
the ends contemplated by its framers, were not the 
growth of a day, nor formed after he came to the 
Bench. He had borne a part in the deliberations of 
the Virginia Convention ; he had participated in the 
discussions that had shaken the halls of the Virginia 
Legislature respecting the rights of the States, as well 
as the rights and powers of the General Government ; 
and his experience, studies, and reflection had led him 
to adopt what has been called the liberal interpreta- 
tion of the Constitution; an interpretation which he 



CHIEF JUSTICE OF UNITED STATES. 139 

believed necessary to secure its benefits, and promote 
the intentions of its framers. Hence his decisions as 
a judge, in cases involving questions of constitutional 
law, were the natural fruit of the system of construc- 
tion which he had previously and maturely adopted. 
What he thought of the opposing system may be seen 
from his opinion in the case of Gibbons v. Ogden.^ 

' This instrument,' said he, ' contains an enumera- 
tion of powers expressly granted by the people to their 
Government. It has been said that these powers ought 
to be construed strictly. But why ought they to be so 
construed ? Is there one sentence in the Constitution 
which gives countenance to this rule ? In the last of 
the enumerated powers, that which grants expressly 
the means for carrying all others into execution. Con- 
gress is authorized " to make all laws which shall be 
necessary and proper" for the purpose. But this limi- 
tation on the means which may be used is not extended 
to the powers which are conferred ; nor is there one 
sentence in the Constitution, which has been pointed 
out by the gentlemen of the Bar, or which we have 
been able to discern, that prescribes this rule. We 
do not, therefore, think ourselves justified in adopting 
it. What do gentlemen mean by a strict construction? 
If they contend only against that enlarged construc- 
tion which would extend words beyond their natural 
and obvious import, we might question the application 
of the term, but should not controvert the principle. 
If they contend for that narrow construction which, in 
support of some theory not to be found in the Consti- 
tution, would deny to the Government those powers 
which the words of the grant, as usually understood, 

' Wheaton, vol. ix., p. 187. 



140 LIFE OF JOHN MARSHAL! 

import, and which are consistent with the general 
views and objects of the instrument ; for that narrow 
construction which would cripple the Government, and 
render it unequal to the objects for which it is declared 
to be instituted, and to which the powers given, as 
fairly understood, render it competent ; then we can- 
not perceive the propriety of this strict construction, nor 
adopt it as the rule by which the Constitution is to be 
expounded.' 

And again : — 'Powerful and ingenious minds taking, 
as postulates, that the powers expressly granted to the 
Government of the Union are to be contracted, by con- 
struction, into the narrowest possible compass, and 
that the original powers of the States are retained, if 
any possible construction will retain them, may, by a 
course of well-digested, but refined and metaphysical 
reasoning, founded on these premises, explain away 
the Constitution of our country, and leave it, a mag- 
nificent structure, indeed, to look at, but totally unfit 
for use. They may so entangle and perplex the un- 
derstanding as to obscure principles which were before 
thought quite plain, and induce doubts where, if the 
mind were to pursue its own course, none would be 
perceived. In such a case it is peculiarly necessary to 
recur to safe and fundamental principles, to sustain 
those principles, and, when sustained, to make them 
the tests of the arguments to be examined.'' * 

* And, in his dissenting opinion in the case of Ogden 
V. Saunders,^ the Chief Justice incidentally remarked 
upon the principles which he thought ought to be ap- 
plied to to the construction of the Constitution. ' To 
say,' he observed, 'that the intention of the instrn- 

' WheatoD, vol. ix., p. 221 * Ibid., vol. xii., p. 332. 



CHIEF JUSTICE OF UNITED STATES. 141 

merit must prevail; that this intention must be col- 
lected from its words ; that its words are to be under- 
stood in that sense in which they are generally used 
by those for whom the instrument was intended; that 
its provisions are neither to be restricted into insignifi- 
cance, nor extended to objects not comprehended in 
them, nor contemplated by its framers — is to repeat 
what has been already said more at large, and is all 
that can be necessary/ <• 

Before proceeding to notice the cases in which the 
principles, as thus explained, were applied to the in- 
terpretation of the Constitution, we shall invite the 
reader's attention to several of those criminal and 
prize causes which constitute marked features of Mar- 
shall's judicial career. Of the former class, the treason 
trials growing out of the enterprizes of Col. Burr will 
necessarily find a place here. 

Aaron Burr, whether viewed in the worst or best 
aspects of his character, was an extraordinary man. 
He was distinguished as a soldier, and, if judged by 
the standard of success, had but few superiors as a 
lawyer. He was aptly termed ' the subtlest practi- 
tioner of the times.' ^ In public life he was remarked 
for his commanding dignity and impressive oratory ; 
and, in private, for an ease and grace, and charm of 
manner, which won the regards of men, and dazzled 
and captivated women. ' He was brave, affable, muni- 
ficent, of indomitable energy, of signal perseverance. 
In his own person, he combined two opposite natures. 
He was studious, but insinuating; dignified, yet seduc- 

' His definition of law, however, namely, ' whatever is boldly 
asserted and plausibly maintained,' shows the estimate in which he 
held his profession, and the ethics he applied to its practice. 



142 LIFE OF JOHN MARSHALL. 

tive. Success did not intoxicate, nor reverse dismay 
him.' ^ On the other hand, he is represented as ' prO' 
fligate in morals, public and private ; selfish and art- 
ful ; a master in dissim ulation, treacherous, cold-hearted, 
subtle, intriguing, full of promise, a sceptic in honesty, 
a scorner of all things noble and good,' from whom the 
people shrank, *in mistrust, as from a cold and glit- 
tering serpent.'^ 

Suspected, and separated, in great measure, from his 
own party, by reason of his contest with Jefferson, and 
anathematized by the other in consequence of his duel 
with Hamilton, Burr found himself, in the maturity 
of his years and talents, cut off, apparently, from the 
very source of political honors. Being thus debarred 
from a career, in his own country, that could give em- 
ployment to his abilities, and scope to his ambition, 
he naturally looked abroad for an appropriate field of 
ciction. At this time, namely, in the spring of 1805, 
and at the close of his term as Vice-President of the 
United States, the imminence of war with Spain 
held out to him a prospect of power and aggrandize- 
ment. 

It was well known that there was great dissatisfac- 
tion throughout Mexico with the mother country; 
that the priesthood were very generally disaffected, 
and ready to lend their powerful aid in throwing off 
the yoke of Spain, provided their privileges were 
asserted and secured. The times seemed eminently 
favorable for the prosecution of a successful enterprize 
against that country; an enterprize, it is stated, which, 
in the event of war, and as a means of inflicting a 
blow upon Spain, was favored by Mr. Jefferson. 'Burr 
saw the glittering prize, and resolved to seize it. He 

• Safford'e Life of Blennerhassett, p. 182. * Ibid. 



CHIEF JUSTICE OF UNITED STATES. 143 

would conquer this gorgeous realm, and realize, in this 
new world, as Napoleon did in the old, a dream of ro- 
mance.' ' That he also anticipated a separation of the 
Western from the Atlantic States, and hoped to profit 
by such an event, is probable ; but that it constituted 
any part of his project to accomplish, or attempt to 
accomplish such separation, is very improbable. ^ That 
a man of sense and ability should entertain such a 
notion, relying for aid on associates whom he knew 
would countenance no treason, is a preposterous and 
insane supposition. As he said on his death-bed, 
he might as well have attempted to seize the moon, 
and parcel it out among his followers.''^ There are 
some circumstances, however, that seemingly justify 
the suspicion that he intended to avail himself of the 
discontents existing in the Mississippi and Louisiana 
territories, and, if the people were ready for such a 
movement, to detach them from the Union. 

In the spring of 1805, he visited the Western coun- 
try, with the view to make arrangements for the con- 
quest of Mexico, and subordinately to engage in a land 
speculation. Through the summer and autumn of 
that year, everything seemed to favor his project. 
War with Spain appeared to be inevitable. The men 
of the West, under the impression that Burr's enter- 
prise was favored by the Administration, were eager 
and impatient to enlist under his banner. But, in the 
winter of 1805-6, the idea of war with Spain, unless 
the United States were actually invaded, was aban- 
doned by the Administration. Burr, therefore, no 
longer had the benefit of that pretext in prosecuting 
his designs; but, nevertheless, he pressed forward to 
their accomplishment. During his tour through the 

' Safford's Life of Blennerhassett, p. 71. * Ibid., p. 182. 



144 LIFE OF JOHN MARSHALL. 

West, in 1805, he had an interview with General Wil- 
kinson, who was then in command of the Western 
forces, and, without question, Wilkinson promised to 
co-operate with him. With tlie expectation of such 
powerful support, Burr prosecuted his arrangements 
with great vigor, and on the 29th of July, 1806, 
being then at Philadelphia, he despatched Samuel 
Swartwout to Wilkinson with a letter in cypher; a let- 
ter which, it is hardly conceivable, so cautious and 
astute a person would write, unless a previous under- 
standing existed with the person to whom it was ad- 
dressed. Tlie letter, however, related to an enterprise 
against the Spanish territories, and had no necessary 
or natural reference to any other. 

Trusting to Wilkinson's co-operation. Burr proceeded 
to the West in August, and commenced active prepa- 
parations for his projected enterprise. Boats and stores 
of various kinds were collected, and an unusual num- 
ber of strange faces made their appearance on the Ohio 
and its tributary waters. Rumors now began to cir- 
culate that these circumstances boded no good to the 
country ; that a conspiracy had been set on foot to 
dismember the Union ; and that designs were medi- 
tated which were masked from the public eye. Wil- 
kinson, too, on receiving Burr's communication by 
Swartwout, proved, according to Burr, ' a perfidious 
villain.' He denounced the enterprise, and adopted 
very vigorous measures to defeat it. Burr's letter he 
forwarded to the President; arrested Swartwout, Boll- 
man, and others, whom he refused to deliver to the 
civil authorities, and proceeded to erect works for the 
defence of New Orleans. 

On the 27th of November, 1806, the President 
issued a proclamation against Burr's proceedings, and 
enjoined the arrest of all persons concerned in them. 



CHIEF JUSTICE OF UNITED STATES. 145 

The result was, that the expedition was broken up, 
and Burr arrested, while attempting to escape across 
the country to Pensacola, and sent under guard to 
Richmond, Virginia, for trial. Swartwout and Boll- 
man had already been sent to Washington, where they 
were committed to prison on a charge of treason against 
the United States. 

Their counsel moved the Supreme Court, then in 
session' at Washington, for a writ o^ habeas corpus, to 
bring them before that tribunal, that the cause of their 
commitment might be inquired into. This motion was 
granted. It was then moved that the prisoners be 
either discharged or admitted to bail.^ 

The evidence against Swartwout consisted chiefly 
of an affidavit made by General Wilkinson, which 
comprehended the substance of Burr's letter, of which 
we have seen Swartwout was the bearer, and also 
Swartwout's declarations to General Wilkinson.^ The 
Court held that Burr's enterprise, as disclosed in his 
letter, related to a foreign power, and, consequently, 
was not treasonable; that Swartwout's declarations, 
even though they might show a treasonable intention, 
afforded no sufficient proof that there was an open 
assemblage of men to carry it into execution, without 
which the crime of treason had not been consummated; 

' February term, 1807. ^ Crancli, vol. iv., pp. 75-137. 

^ Swartwout, on an inquiry from Wilkinson, said, ' This territory, 
(meaning, probably, the Louisiana territory, though this is not alto- 
gether clear,) ' would be revolutionized where the people were ready 
to join them, and that there would be some seizing, he supposed, at 
New Orleans.' He also stated that ' Col. Burr, with the support 
of a powerful association extending from New York to New Orleans, 
was levying an armed body of seven thousand men from the State of 
New York and the Western States and territories, with a view to carry 
an expedition to the Mexican territories.' 
10 



146 LIFE OF JOHN MARSHALL. 

and, consequently, that he could not be held on that 
charge. Against Bollnian there was no evidence, 
whatever, to support a charge of treason, and he was 
likewise discharged. 

Marshall, Chief Justice. ' The specific charge brought 
against the prisoners is treason in levying war against 
the United States.' ' To constitute that specific crime 
for which the prisoners now before the Court have 
been committed, war must be actually levied against 
the United States. However flagitious may be the 
crime of conspiring to subvert, by force, the Govern- 
ment of our country, such conspiracy is not treason. 
To conspire to levy war, and actually to levy war, are 
distinct offences. The first must be brought into opera- 
tion by the assemblage of men for a purpose treason- 
able in itself, or the fact of levying war cannot have 
been committed.' ' It is not the intention of the Court 
to say that no individual can be guilty of this crime 
who has not appeared in arms against his country. 
On the contrary, if war be actually levied, that is, if a 
body of men be actually assembled for the purpose of 
effecting by force a treasonable purpose, all those who 
perform any part, however minute, or however remote 
from the scene of action, and who are actually leagued 
in the general conspiracy, are to be considered as 
traitors. But there must be an actual assembling of 
men for the treasonable purpose to constitute a levy- 
mg of war.' ' The application of these general princi- 
ples to the particular case before the Court will depend 
on tlie testimony which has been exhibited against the 
accused.' 'Although, in making a commitment, the 
magistrate does not decide on the guilt of the prisoner, 
yet he does decide on the probable cause, and a long 
and painful imprisonment may be the consequence of 



CHIEF JUSTICE OF UNITED STATES. 147 

his decision. This probable cause, therefore, ought to 
be proved by testimony in itself legal, and which, 
though, from the nature of the case, it must be ex 
parte, ought, in most other respects, to be such as a 
court and jury might hear.' 

Marshall held the May term of the Circuit Court for 
the district of Virginia, at which indictments were 
found against Burr and others for treason, and misde- 
meanor. The proceedings on the trial, the various 
motions that were made, and the various discussions 
that took place, were minutely reported, and subse- 
quently published in two large volumes. We shall 
reproduce here, however, only the points that proved 
decisive of the cause. The trial, in every respect, was 
an interesting one. The nature of the charge against 
the prisoner, his acknowledged talents, and the high 
positions he had hitherto held, the number and emi- 
nence of the counsel employed, as well as the conse- 
quences involved, excited an extraordinary interest in 
the community. The indictments were brought in by 
the grand jury on the 24th of June, and the trial was 
then postponed until the 3d of August. 

On that day the Court again assembled ; but it was 
not until the 17th of the month that a jury was ob- 
tained, so general were the prepossessions against the 
prisoner and his cause. But, however strongly the 
current had set against him elsewhere, he could confi- 
dently rely on the Court for impartiality and candor ; 
for a firm and faithful administration of the law, unin- 
fluenced by the wishes of the Government, and unawed 
by popular clamor. Burr knew this, and, as the pri- 
vate memoranda of Blennerhassett show, strongly ex- 
pressed it. 



148 LIFE OF JOHN MARSHALL. 

* Burr did not,' says Blennerhassett, ' infer that Chief 
J. will, on the present occasion, shrink from his duty, 
as an able judge or a virtuous patriot, to avert the re- 
venge of an unprincipled Government, or avoid other 
trials menaced and preparing for himself, by its wretched 
partizans. ... I am certain, whatever insects may have 
sought the judge's robes, whilst off his back, none will 
venture to appear upon the ermine which bedecks his 
person.' ^ 

' Burr's forensic army' consisted of Edmund Ran- 
dolph, John Wickham, Benjamin Botts, John Baker, 
Luther Martin, and Charles Lee, the late Attorney- 
General of the United States. Burr, too, was a host 
in himself, and discovered great acumen and ability in 
conducting his defence. ' The vivacity of his wits,' 
says Blennerhassett, ' and the exercise of his proper 
talents, now constantly solicited here, in private and 
public exhibition, . . . display him, to the eager eyes 
of the multitude, like a favorite gladiator, measuring 
over the arena of his fame, with firm step and manly 
grace, the pledges of easy victory.' ^ The Government 
was represented by George Hay, Alexander M'Rae, 
and William Wirt. 

The indictment contained two counts; one charging 
that the prisoner, with a number of persons unknown, 
levied war on Blennerhassett's island, in Wood County, 
Virginia; and the other adding the circumstance of 
their proceeding from that island down the river, for 
the purpose of seizing New Orleans by force. The tes- 
timony adduced by the prosecution to prove the overt 
act laid in the indictment, showed, and the prosecuting 

' ' Private Memoranda' of Blennerhassett, kept- while confined at 
Richmond. American lleview for 1845, p. 146. 
' Davis's Life of Burr, vol. ii., p. 393 



CHIEF JUSTICE OF UNITED STATES. 149 

Attorney admitted, that Burr was not present when 
the alleged act was coinniitted. The defence, there- 
fore, insisted that any testimony that connected hin? 
with those who committed the overt act was irrelevant, 
because, conformably to the Constitution of the United 
States, no man can be convicted of treason who was 
not present when the war was levied ; and because, 
even if it were otherwise, no testimony could be re- 
ceived, to charge one man with the overt acts of others, 
until those overt acts, as laid in the indictment, be 
proved to the satisfaction of the Court. Besides, it was 
contended that the indictment, having charged the 
prisoner with levying war on Blennerhassett's island, 
and containing no other overt act, could not be sup- 
ported by proof that war was levied at that place by 
other persons, in his absence, even though he was con- 
nected with such persons in one common treasonable 
conspiracy ; but, even if this were not the case, the 
previous conviction of some person who committed the 
act, supposed to constitute a levying of war, was indis- 
pensable to the conviction of a person who advised or 
procured such act. On the part of the prosecution it 
was contended that, although the accused was not 
actually present with the party assembled at Blenner- 
hassett's island, he was yet legally present, and, there- 
fore, might properly be charged in the indictment as 
being present in fact. And the opinion of the Court 
in ex 'parte BoUman and Swartwout was relied upon to 
sustain this position. The questions thus presented to 
the Court were most important; for, if the testimony 
objected to was arrested, tlie prosecution was at an 
end. ' The discussions at the Bar lasted a week, and 
' a degree of eloquence seldom displayed on any occar 
sion embellished a solidity of argument, and a depth of 
research,' which the Chief J ustice gracefully acknowl- 



150 LIFE OF JOHN MARSHALL. 

edged had greatly aided him in the opinion he de- 
livered. He knew and appreciated the responsibility 
that rested upon him. He knew that a decision favor- 
able to the prisoner would subject him to the severest 
criticisms; that his motives would be impeached; that 
the press would assail him ; and that the public mind, 
excited and prejudiced, was liable to be poisoned and 
misled. But the fear of consequences did not for a 
moment influence him. 

' That this Court,' said he, ' dares not usurp power 
is most true. That this Court dares not shrink from 
its duty is not less true. No man is desirous of placing 
himself in a disagreeable situation. No man is desirous 
of becoming the peculiar subject of calumny. No man, 
might he let the bitter cup pass, from him without self- 
reproach, would drain it to the bottom. But if he has 
no choice in the case ; if there is no alternative pre- 
sented to him but a derilection of duty, or the oppro- 
brium of those who are denominated the world, he 
merits the contempt, as well as the indignation of his 
country, who can hesitate which to embrace.' * 

As the prosecution relied on the opinion in ex parte 
BoUman and Swartwout, to sustain the positions they 
had assumed, the Chief Justice entered into an expla- 
nation of the "general expressions employed by the 
Court in that case, in order to show that they did not 
warrant the interpretation which had been put upon 
them. In that case, the Court had said, ^if war be 
actually levied, that is, if a body of men be actually 
assembled for the purpose of effecting, by force, a trea- 
sonable object, all those who perform any part, how- 
ever minute, or however remote from the scene of ac- 
tion, and who are actually leagued in the general con- 
spiracy, are to be considered as traitors.' But, as the 



CHIEF JUSTICE OF UNITED STATES. 151 

Chief Justice remarked, this opinion did not touch the 
case of a person who advised or procured an assem- 
blage, and did nothing further. It had reference to 
the person who performs a part in the actual levying 
of war ; and this part, however minute or remote, con- 
stitutes the overt act on which alone the person who 
performs it can be convicted. He must be indicted for 
the part actually performed by him, and not for a part 
which was, in truth, performed by others. If, there- 
fore, the assemblage on Blennerhassett's island, was an 
assemblage in force, was a military assemblage in a 
condition to make war,* and having a treasonable ob- 
ject, it was, in fact, a levying of war, and, conse- 
quently, treason. But, as the accused was not present, 
and performing a part, as charged, evidence of his acts 
elsewhere was irrelevant. In other words, the indict- 
ment charged him with actually levying war on Blen- 
nerhassett's island, and, therefore, could not be sup- 
ported by evidence which showed that he was actually 
absent from the scene of action. In short, that the 
Government could not state one case, and prove "a very 
different one ; or charge the prisoner with aiding in 
one transaction, and prove him to be actually employed 
in another. If the prisoner advised, procured, or com- 
manded the treasonable act, though this might not 

'■ Marshall, Chief Justice. 'An assemblage to constitute an actual 
levying of war, should be an assemblage with such force as would jus- 
tify the opinion that they met for the purpose.' ' Why is an assem- 
blage absolutely required ? Is it not to judge, in some measure, of 
the end by the proportion which the means bear to the end ? Why 
is it that a single armed individual, entering a boat and sailing down 
the Ohio, for the avowed purpose of attacking New Orleans, could 
not be said to levy war 'i Is it not that he is apparently not in a con- 
dition to levy war ? If this be so, ought not the assemblage to fur- 
nish some evidence of its intention and capacity to levy war, before it 
■can amount to levying war V 



152 LIFE OF JOHN MARSHALL. 

amount to treason, under the Constitution of the 
United States, yet the indictment should have charged 
him with what he actually did, and the evidence 
should conform to the charge. 

Marshall, Chief Justice. 'The whole treason laid in 
this indictment is the levying of war on BlennerhaS' 
sett's island, and the whole question to which the in- 
quiry of the Court is now directed is, whether the 
prisoner was legally present at that fact. I say this 
is the whole question, because the prisoner can only 
be convicted on the overt act laid in the indictment. 
With respect to this prosecution, it is as if no other 
overt act existed. If other overt acts can be inquired 
into, it is for the sole purpose of proving the particular 
fact charged ; it is as evidence of the crime consisting 
of this particular fact, not as establishing the general 
crime by a distinct fact.' ' It is, then, the opinion of 
the Court that this indictment can be supported only 
by testimony which proves the accused to have been 
actually or constructively* present when the assem- 
blage took place on Blennerhassett's island, or by the 
admission of the doctrine that he who procures an act 
may be indicted as having performed that act. It is, 
further, the opinion of the Court that there is no tes- 
timony whatever which tends to prove that the accused 
was actually or constructively present when that assem- 
blage did take place. Indeed, the contrary is most 
apparent. With respect to admitting proof of procure- 

' If the accused, though he had not arrived in the island, had 
taken a position near enough to co-operate with those on the island, 
to assist them in any act of hostility, or to aid them if attacked, he, 
then, might have been constructively present, and this would have 
been a mixed question of law and fact, for the jury, with the aid of 
the Court, to decide. 



CHIEF JUSTICE OF UNITED STATES. 153 

ment to establish a charge of actual presence, the Court 
is of opinion that, if this be admissible in England on 
an indictment for levying war, which is far from being 
conceded, it is admissible only by virtue of the opera- 
tion of the common law upon the statute, and, there- 
fore, is not admissible in this country unless by virtue 
of a similar operation ; a point far from being esta- 
blished, but on which, for the present, no opinion is 
given. If however, this point be established, still the 
procurement must be proved in the same manner, and 
by the same kind of testimony, which would be re- 
quired to prove actual presence.' ' If those who per- 
petrated the fact be not traitors, he who advised the 
fact cannot be a traitor. . . . His guilt, therefore, de- 
pends on theirs, and their guilt cannot be legally esta- 
blished in a prosecution against him.' ' Now an assem- 
blage on Blennerhassett's island is proved by the 
requisite number of witnesses, and the Court might 
submit it to the jury, whether that assemblage 
amounted to a levying of war; but the presence of the 
accused at that assemblage being nowhere alleged, ex- 
cept in the indictment, the overt act is not proved by 
a single witness, and, of consequence, all other testi- 
mony must be irrelevant.' 

The jury having heard the opinion of the Court on 
the law of the case, brought in a verdict of ^ Not 
Guilty.' On the 9th of September, Burr was again 
arraigned, upon an indictment for a misdemeanor; but 
the evidence failed to support the charge, and again 
the verdict of the jury was 'not guilty.' 

The published correspondence of Jefferson shows 
how keen was his disappointment at the result of these 
prosecutions, and how warm his resentment against the 
Chief Justice, to whom he deemed that result was 



154 LIFE OF JOHN MARSHALL. 

attributable. * Federalism in the Judiciary Depart- 
ment' ' had always been a subject of annoyance to the 
President, and the acquittal of Burr was not likely to 
mollify the sentiment. At the next session of Congress 
his personal friend, and one of the warmest among the 
supporters of his Administration, namely, Mr. Giles, 
introduced a bill into the Senate to define treason. He 
made a speech in support of it, and ' attacked Chief 
Justice Marshall with insidious warmth.' Amongst 
other things he said, 'I have learned that judicial 
opinions on this subject are like changeable silks, 
which vary their colors as they are held up in political 
sunshine.'^ It is easier, however, to impute motives 
than to answer arguments; and as neither the reason- 
ing of the Chief Justice, nor the conclusions to which 
it led, have yet been refuted, we may safely conclude 
that the principles by which he was guided were en- 
tirely correct. 

Having failed to convict Burr upon either of the in- 
dictments, the prosecution now moved to commit him for 
trial in Ohio ; and, after hearing the arguments of the 
respective parties, the Chief Justice finally held him 
to bail in the sum of three thousand dollars to answer 
in that State for a misdemeanor, in setting on foot a 
military expedition against the Spanish territories. 
This decision, naturally enough, was very annoying 
to Burr, and he commented upon it with no little bit 
terness. * I found Burr,' says Blennerhassett, before the 
decision was pronounced, but when it had been fore- 
shadowed, * after a consultation with his coungel, 

' Jefferson's Works, vol. v., p. 63. Letter to Bowdoin, April 2d, 
1807. See also his letters to George Hay during the progress of the 
trial, and at its conclusion, in the same volume. 

* Story's Letters, vol. i., p. 157. Letter to Fay, February 13th, 
1808. 



CHIEF JUSTICE OF UNITED STATES. 155 

secretly writhing under much irritation at the conduct 
of Judge Marshall, but affecting an air of contempt for 
his alleged inconsistencies, as Burr asserted he [the 
Judge] did not, for the last two days, understand 
either the questions or himself; that he had wavered 
in his opinions before yesterday's adjournment, and 
should, in future, be put right by strong language. I 
am afraid to say abuse, though I think I could swear 
to that word.'^ As the Chief Justice was not 'put 
right/ according to Burr's conception of that phrase, 
we might safely conclude, even in the absence of any 
proof as to the propriety of his conduct, that he did 
not employ the 'strong language' which he threatened. 
To his daughter he wrote, that 'the opinion was a 
matter of regret and surprise to the friends of the 
Chief Justice, and of ridicule to his enemies; all be- 
lieving that it was a sacrifice of principle to conciliate 
Jack Cade.' ^ If the decision was a proper one, if it 
was legal, even though the firmness and integrity of 
the Chief Justice were unknown to us, we might justly 
infer that it proceeded from good motives; and upon 
the question of law, the opinion of the Chief Justice 
will have more weight, perhaps, than the opinion of 
Col. Burr. 

It would be impossible, and, if possible, improper, in 
a work of this character, to go into an examination of 
the multitude of prize, commercial, insurance, patent, 
and land cases that were pronounced upon by the Su- 
preme Court in the time of Chief Justice Marshall. 
We shall only venture to select from them one or two 
prize cases, which will be more likely, perhaps, than 
others, to interest the reader. All the leading doctrines 



' Davis's Burr, vol. ii., p. 397. September 20th, 1807. 
* Ibid., p. 411. October 23d, 1807. 



156 LIFE OF JOHN MARSHALL. 

of prize law were discussed and confirmed by the 
Court, and its decisions on this subject constitute an 
elaborate and imperishable code. Among the more 
celebrated judgments of the Chief Justice, in this 
branch of the law, may be mentioned Rose v. Himely;' 
the Exchange,^ in which it was held that the capture 
of an American vessel, and her subsequent commission 
in the service of the capturing Power, stamped her 
with the character of foreign nationality, and that the 
American owner must look to his Government for 
redress; the vessel in such a case, though coming 
within the territorial jurisdiction of the American 
courts, not being amenable to judicial process; and 
the Nereide,^ which involved the question whether a 
hostile force added to a hostile flag infects with a hos- 
tile character the goods of a friend. The facts in the 
latter case were as follows : — 

The Nereide, a British vessel, mounting sixteen guns, 
was hired by Manuel Pinto, a merchant of Buenos 
Ayres, to transport a cargo belonging to himself and 
some of his countrymen from London to Buenos Ayres. 
On her passage she was captured by an American pri- 
vateer, brought into the port of New York, and both 
vessel and cargo condemned as lawful prize. From this 
decree Mr. Pinto appealed to the Supreme Court. He 
was there represented by Emmett and Hoffman; the 
captors by Pinkney and Dallas. Emmett and Pinkney 
were the opposing champions who attracted most atten- 
tion, and whose efforts elicited most applause. Their 
arguments were among the best displays of their foren- 
sic abilities. 

' Cranch, vol. iv., p. 241. * Ibid., vol. vii., p. 116. 

' Ibid., vol. ix., p. 430. Compare with this case the decision of 
Lord Stowcll in Dodson's Adm. Rep., vol. i., p. 443. See also The 
Atalanta, in Wheaton's Reports, vol. iii., p. 409 



CHIEF JUSTICE OF UNITED STATES. 157 

Of course it was conceded that the goods of a neutral 
on board an unarmed enemy vessel were exempt from 
condemnation as prize; but it was contended that the 
neutral character was forfeited, if they were placed on 
board an armed enemy vessel, inasmuch as the neutral 
thereby set in motion an agent of hostility. If it were 
otherwise, if the contrary idea were personified, said 
Pinkney, 'we shall have neutrality, soft and gentle, 
and defenceless in herself, yet clad in the panoply of 
her warlike neighbors, with the frown of defiance upon 
her brow, and the smile of conciliation upon her lip ; 
with the spear of Achilles in one hand, and a lying 
protestation of innocence and helplessness enfolded in 
the other. Nay, if I may be allowed so bold a figure 
in a mere legal discussion, we shall have the branch 
of olive entwined around the bolt of Jove, and neu- 
trality in the act of hurling the latter under the deceit- 
ful cover of the former.' 

'Call you that neutrality which thus conceals be- 
neath its appropriate vestments the giant limbs of war 
and converts the charter-party of the counting-house 
into a commission of marque and reprisals, which 
makes of neutral trade a laboratory of belligerent 
annoyance; which, with a perverse and pernicious in- 
dustry, warms a torpid serpent into life, and places it 
beneath the footsteps of a friend with a more appalling 
lustre on its crest, and added venom in its sting; 
which, for its selfish purposes, feeds the fire of inter- 
national discord, which it should rather labor to extin- 
guish, and, in a contest between the feeble and the 
strong, enhances those inequalities that give encou- 
ragement to ambition, and triumph to injustice?'' 

But the Court viewed the subject in a different light 
' Wheaton's Life of Pinkney. 



158 LIFE OF JOHN MARSHALL. 

Marshall, Chief Justice. ^ The Nereide was armed, 
governed, and conducted by belligerents. With her 
force, or her conduct, the neutral shippers had no con- 
cern ; they deposited their goods on board the vessel, 
and stipulated for their direct transportation to Buenos 
Ayres. It is true that, on her passage, she had a right 
to defend herself, and might have captured an assailing 
vessel ; but to search for the enemy would have been 
a violation of the charter-party and of her duty. 

' With a pencil dipped in the most vivid colors, and 
guided by the hand of a master, a splendid portrait 
has been drawn, exhibiting this vessel and her freighter 
as forming a single figure, composed of the most dis- 
cordant materials of peace and war. So exquisite was 
the skill of the artist, so dazzling the garb in which 
the figure was presented, that it required the exercise 
of that cold investigating faculty which ought always 
to belong to those who sit on this Bench, to discover 
its only imperfection — its want of resemblance. 

' The Nereide has not that centaur-like appearance 
which has been ascribed to her. She does not rove 
over the ocean, hurling the thunders of war, while 
sheltered by the olive-branch of peace. She is not 
composed in part of the neutral character of Mr. Pinto, 
and in part of the hostile character of her owner. She 
is an open and declared belligerent; claiming all the 
rights, and subject to all the dangers of the belligerent 
character. She conveys neutral property which does 
not engage in her warlike equipments, or in any em- 
ployment she may make of them ; which is put on 
board solely for the purpose of transportation, and 
which encounters the hazard incident to its situation — 
the hazard of being taken into port, and obliged to 
eeek another conveyance, should its carrier be cap- 
tured. In this, it is the opinion of the majority of the 



CHIEF JUSTICE OF UNITED STATES. 159 

Court, there is nothing unlawful. The character of 
the vessel and the cargo remain as distinct in this as 
in any other case.' 

Marbury v. Madison' was the first case involving a 
constitutional question of any importance, that came 
before Chief Justice Marshall. The facts of the case 
were these : — Mr. Adams, before the expiration of his 
term of office, nominated Marbury to the Senate as 
Justice of the Peace for the District of Columbia, and 
the Senate approved the nomination. A commission 
was then drawn up, signed by the President, and 
sealed with the seal of the United States ; but it had 
not been delivered when Mr. Jeflferson succeeded to 
the Presidency. He, thinking the appointment incom- 
plete until delivery of the commission, countermanded 
its delivery. A mandamics was then moved for, com- 
manding Mr. Madison, the Secretary of State, to de- 
liver it. 

The interposition of the Court was invoked, on the 
ground tha-t they were authorized by an act of Con- 
gress ' to issue writs of mandamus, in cases warranted 
by the principles and usages of law, to any courts ap- 
pointed, or persons holding office, under the authority 
of the United States.' The first question, then, that 
naturally presented itself was, whether the authority 
thus given to the Supreme Court, to issue writs of 
mandamus to public officers, was warranted by the 
Constitution, and, if not, whether the Court was com- 
petent to declare the act void which conferred the 
authority ; or, in other words, whether the Supreme 
Court possessed the power to declare void an act of 
Congress which they deemed repugnant to the Consti- 
tution ? The order, however, in which the Court 

' Cranch's Reports, vol. i., p. 158. 



160 LIFE OF JOHN MARSHALL. 

viewed tlie subject reversed the objects of inquiry. 
They first considered whether Marbury had a right to 
the commission which he chaimed ? And they decided 
that he had ; that an appointment is complete when 
the commission is signed by the President ; that the 
commission is complete when the seal of the United 
States has been affixed to it; and to withhold such 
commission from an officer not removable at the will 
of the Executive, is violating a vested legal right. 

As the legality of his conduct, in directing the Secre- 
tary of State to withhold the commission from Mar- 
bury, was involved in this part of the decision, it was 
natural, perhaps, that Jeffijrson should be somewhat 
restive under the conclusions at which the Chief Jus- 
tice arrived. His view of the matter was, that the 
validity of a commission, like that of a deed, depends 
on delivery; and as the Court held that they had no 
cognizance of the case, he considered their opinion as 
to the legality of Marbury's claim ^gratuitous,' 'an 
obiter dissertation of the Chief Justice,' and, at all 
events, a 'perversion of the law.'^ Whether it be an 
irregular and censurable practice, as he termed it, for 
a court to express an opinion on the merits of a case 
In which they have no jurisdiction, they may, never- 
theless, do it with very good motives, however those 
notives may be questioned. As to the real decision 
of the Court, namely, on the question of jurisdiction, 
and its power to declare void an unconstitutional act 
of Congress, the reasoning and conclusions of the Chief 
Justice have commanded universal assent. 

Marshall, Chief Justice. 'The Constitution vests 
the whole political power of the United States in one 

' Jefferson's Works, vol. vii., p. 290. Letter to Judge Johnson, 
June 12th, 1823. See also vol. v., p. 84. 



CHIEF JUSTICE OF UNITED STATES. 161 

Supreme Court, and sucJi inferior Courts as Congress 
shall from time to time ordain and establish.' 'In the 
distribution of this power it is declared that '"the Su- 
preme Court shall have original jurisdiction in all cases 
affecting Ambassadors, other public Ministers, and 
Consuls, and those in which a State shall be a party. 
In all other cases the Supreme Court shall have appel- 
late jurisdiction.' ' To enable this Court, then, to issue 
a mandamus, it must be shown to be an exercise of 
appellate jurisdiction, or to be necessary to enable them 
to exercise appellate jurisdiction.' ' It is the essential 
criterion of appellate jurisdiction that it revises and 
corrects the proceedings in a cause already instituted, 
and does not create that cause. Although, therefore, 
a mandamus may be directed to Courts, yet to issue 
such a writ to an officer for the delivery of a paper is, 
in effect, the same as to sustain an original action for 
that paper, and, therefore, seems not to belong to ap- 
pellate, but to original jurisdiction. Neither is it neces- 
sary, in such a case as this, to enable the Court to 
exercise its appellate jurisdiction. The authority, 
therefore, given to the Supreme Court, by the act esta- 
blishing the Judicial Courts of the United States, to 
issue writs of mandamus to public officers, appears not 
to be warranted by the Constitution ; and it becomes 
necessary to inquire whether a jurisdiction so con- 
ferred can be exercised. 

' The question, whether an act repugnant to the 
Constitution can become the law of the land, is a ques- 
tion deeply interesting to the United States ; but, hap- 
pily, not of an intricacy proportioned to its interest.' 
* If an act of the Legislature repugnant to the Consti- 
tution is void, does it, notwithstanding its invalidity, 
bind the courts, and oblige them to give it effect ? Or, 

in other words, though it be not law, does it constitute 
11 



162 LIFE OF JOHN MARSHALL. 

a rule as operative as if it was a law ? This would be 
to overthrow in f\ict what was established in theory ; 
and would seem, at first view, an absurdity too gross 
to be insisted on. It shall, however, receive a more 
attentive consideration. It is emphatically the pro- 
vince and duty of the judicial department to say what 
the law is. Those who apply the rule to particular 
cases must of necessity expound and interpret that 
rule. If two laws conflict with each other, the courts 
must decide on the operation of each. So, if a law be 
in opposition to the Constitution ; if both the law and 
the Constitution apply to a particular case, so that the 
court must either decide that case conformably to the 
law, disregarding the Constitution ; or, conformably to 
the Constitution, disregarding the law; the court must 
determine which of these conflicting rules governs the 
case. This is of the very essence of judicial duty. If, 
then, the courts are to regard the Constitution, and 
the Constitution is superior to any ordinary act of the 
Legislature, the Constitution, and not such ordinary 
act, must govern the case to which they both apply.' ' 

As in the case of Marbury v. Madison, the Supreme 
Court declared void an act of Congress which they 
deemed repugnant to the Constitution, so in the case 
of Fletcher v. Peck,* they declared void, for the same 
reason, an act of a State Legislature.^ The Legislature 
of Georgia passed an act authorizing a patent to issue, 
granting a tract of land within the limits of that State. 
After the patent had been granted, a succeeding Legis- 
lature repealed the act which authorized it. It was 
cx)ntended that the original act was repugnant to the 
Constitution of Georgia; that the Legislature which 

' Cranch's Reports, vol. vi. p. 87. 

' This was also doae iu twenty-six subsequent instances- 



CHIEF JUSTICE OF UNITED STATES. 163 

passed it was corrupted ; and that one Legislature 
cannot restrain a succeeding Legislature from repeal- 
ing its acts. 

Marshall, Chief Justice. ' The question whether a 
law be void for its repugnancy to the Constitution is, 
at all times, a question of much delicacy, which ought 
seldom, if ever, to be decided in the affirmative in a 
doubtful case. The Court, when impelled by duty to 
render such a judgment, would be unworthy of its sta- 
tion, could it be unmindful of the solemn obligations 
which that station imposes. But it is not on slight 
implication and vague conjecture that the Legislature 
is to be pronounced to have transcended its powers, 
and its acts to be considered as void. The opposition 
between the Constitution and the law should be such 
that the judge feels a clear and strong conviction of 
their incompatibility with each other.* In this case 
the Court can perceive no such opposition. In the 
Constitution of Georgia, adopted in the year 1789, the 
Court can perceive no restriction on the Legislative 
powers which inhibits the passage of the act of 1795. 
The Court cannot say that, in passing that act, the 
Legislature has transcended its powers and violated 
the Constitution.' 

* The case, as made out in the pleadings, is simply 
this. An individual who holds lands in the State of 
Georgia, under a deed covenanting that the title of 
Georgia was in the grantor, brings an action of cove- 
nant upon this deed, and assigns as a breach that 
some of the members of the Legislature were in- 
duced to vote in favor of the law which consti- 
tuted the contract, by being promised an interest in 
it; and that, therefore, the act is a mere nullity. 
This solemn question cannot be brought thus col- 



164 LIFE OF JOHN MARSHALL. 

laterally and incidentally before the Court. It would 
bo indecent in the extreme, upon a private contract 
between two individuals, to enter into an inquiry 
respecting the corruption of the sovereign power of a 
State. If the title be plainly deduced from a Legisla- 
tive act which the Legislature might constitutionally 
pass, if the act be clothed with all the requisite forms 
of law, a court, sitting as a court of law, cannot sus- 
tain a suit brought by one individual against another, 
founded on the allegation that the act is a nullity in 
consequence of the impure motives which influenced 
certain members of the Legislature which passed the 
law.' 

' The principle asserted is, that one Legislature is 
competent to repeal any act which a former Legisla- 
ture was competent to pass, and that one Legislature 
cannot abridge the powers of a succeeding Legislature. 
The correctness of this principle, so far as it respects 
general legislation, can never be controverted. But, 
if an act be done under a law, a succeeding Legislature 
cannot undo it. The past cannot be recalled by the 
most absolute power. Conveyances have been made, 
those conveyances have vested legal estates, and if 
those estates may be seized by the sovereign authority, 
still that they originally vested is a fact, and cannot 
cease to be a fact. When, then, a law is in its nature 
a contract, when absolute rights have vested under 
that contract, a repeal of the law cannot divest those 
rights.' ' The validity of this rescinding act, then, 
might be doubted, were Georgia a single sovereign 
power. But Georgia cannot be viewed as a single, un- 
connected, sovereign power, on whose Legislature no 
other restrictions are imposed than may be found in its 
own Constitution. She is a part of a large empire; she 
is a member of the American Union ; and that Union 



CHIEF JUSTICE OF UNITED STATES. 165 

has <a Constitution, the supremacy of which all acknow- 
ledge, and which imposes limits to the Legislatures of 
the several States, which none claim a right to pass. 
The Constitution of the United States declares that 
" no State shall pass any bill of attainder, ex post facto 
law, or law impairing the obligation of contracts." 

' Does the case now under consideration come within 
this prohibitory section of the Constitution ? In con- 
sidering tliis very interesting question we immediately 
ask ourselves. What is a contract ? Is a grant a con- 
tract ?' ' A contract executed is one in which the 
object of contract is performed; and this, says Black- 
stone, differs in nothing from a grant. The contract be- 
tween Georgia and the purchasers was executed by the 
grant. A contract executed, as well as one which is 
executory, contains obligations binding on the parties. 
A grant, in its own nature, amounts to an extinguish- 
ment of the right of the grantor, and implies a contract 
not to reassert that right. A party is, therefore, always 
estopped by his own grant.' ' If, under a fair construc- 
tion of the Constitution, grants are comprehended 
under the term "contracts," is a grant from a State 
excluded from the operation of the provision ? Is the 
clause to be considered as inhibiting the State from 
impairing the obligation of contracts between two indi- 
viduals, but as excluding from that inhibition contracts 
made with itself? The words themselves contain no 
such distinction. They are general, and are applicable 
to contracts of every description.' ' Why, then, should 
violence be done to the natural meaning of words for 
the purpose of leaving to the Legislature the power of 
seizing, for public use, the estate of an individual, in 
the form of a law annulling the title in which he holds 
that estate ? The Court can perceive no sufficient 
grounds for making this distinction.' 



IGG LIFE OF ^OHN MARSHALL. 

The case of Dartmouth College,* from some acci- 
dental circumstances connected with it, and from the 
importance of the principle which it established, 
namely, that a grant of corporate powers is a contract, 
the obligation of which the States are inhibited to im- 
pair, attracted great attention at the time, and has lost 
but little of its interest since. 

The facts of the case were as follows : — A charter 
was granted to Dartmouth College, in 1769, by the 
Crown, on the representation that property would be 
given the College, if chartered ; and, after the charter 
was granted, property was actually given. In 1816, 
the Legislature of New Hampshire passed three acts, 
amending the charter, which amendment the trustees 
would not accept. They invoked the aid of the State 
Courts; but judgment being given against them, they 
carried their case to the Supreme Court. There they 
were represented by Mr. Hopkinson and Mr. Webster; 
and the other side by Mr. Wirt, then Attorney-General 
of the United States, and Mr. Holmes. 

The chief interest of the argument consisted in the 
speeches of Webster and Wirt. The former had argued 
the case in the State Courts, was familiar with the 
whole field of controversy, was a graduate of the Col- 
lege, and his feelings as a man combined with his am- 
bition as an advocate to urge him to the utmost exer- 
tion of his powers. He addressed the Court for more 
than four hours, in an argument marked by his usual 
characteristics — clearness of statement, force and pre- 
cision of reasoning. 

' The argument ended,' says an eye-witness,* * Mr. 

* Wheaton, vol. iv., p. 518. 

* Prof. Goodrich, of Yale College. Vide Choate's Eulogy on Web 
Bter 



CHIEF JUSTICE OF UNITED STATES. 167 

Webster stood, for some moments, silent before the 
Court, while every eye was fixed intently upon him. 
At length, addressing the Chief Justice, Marshall, he 
proceeded thus : — 

* This, Sir, is my case ! It is the case not merely 
of that humble institution — it is the case of every 
college in our land. It is more. It is the case of 
every eleemosynary institution throughout our coun- 
try — of all those great charities founded by the piety 
of our ancestry to alleviate human misery, and scatter 
blessings along the pathway of life. It is more ! It 
is, in some sense, the case of every man among us, who 
has property of which he may be stripped ; for the 
question is simply this : " Shall our State Legislatures 
be allowed to take that which is not their own, to turn 
it from its original use, and apply it to such ends or 
purposes as they, in their discretions, shall see fit?" 
Sir, you may destroy this little institution; it is weak; 
it is in your hands! I know it is one of the lesser lights 
in the literary horizon of our country. You may put 
it out. But if you do so, you must carry through your 
work. You must extinguish, one after another, all 
those great lights of science which, for more than a 
century, have thrown their radiance over our land ! It 
is. Sir, as I have said, a small college. And yet there 
are those who love it. [Here the feelings which he 
had thus far succeeded in keeping down, broke forth; 
his lips quivered ; his firm cheeks trembled with emo- 
tion; his eyes were filled with tears; his voice choked; 
and he seemed struggling to the utmost simply to gain 
that mastery over himself which might save him from 
an unmanly burst of feeling. I will not attempt to 
give you the few broken words of tenderness in which 
he went on to speak of his attachment to the college ; 
the whole seemed to be mingled throughout with the 



168 LIFE OF JOHN MARSHALL. 

recollections of father, mother, brother, and all the 
trials and privations through which he had made his 
way into life. Every one saw that it was wholly un- 
premeditated, a pressure on his heart, which sought 
relief in words and tears.] 

' The court-room, during these two or three minutes, 
presented an extraordinary spectacle. Chief Justice 
Marshall, with his tall and gaunt figure bent over, as 
if to catch the slightest whisper, the deep furrows of 
his cheek expanded with emotion, and eyes suffused 
with tears ; Mr. Justice Washington, at his side, with 
his small and emaciated frame, and a countenance 
more like marble than I ever saw on any other human 
being, leaning forward with an eager, troubled look ; 
and the remainder of the Court, at the two extremi- 
ties, pressing, as it were, towards a single point, while 
the audience below were wrapping themselves around 
in closer folds beneath the bench, to catch every look 
and every movement of the Speaker's face. If a 
painter could give us the scene on canvass — those 
forms and countenances, and Daniel Webster as he 
then stood — it would be one of the most touching pic- 
tares in the history of eloquence.' ' Mr. Webster had 
now recovered his composure, and, fixing his keen eye 
on the Chief Justice, said, in that deep tone with which 
he sometimes thrilled the heart of an audience : — 

* Sir, I know not how others may feel,' (glancing at 
the opponents of the college before him,) ' but, for 
myself, when I see my alma mater surrounded, like 
Caesar in the Senate House, by those who are reite- 
rating stab upon stab, I would not, for this right hand, 
have her turn to me and say, ^^ et tu quoque ml fill." 
And thou, too, my son ! He sat down. There was a 
death-like stillness throughout the room for some mo- 
ments ; every one seemed to be slowly recovering 



CHIEF JUSTICE OF UNITED STATES. 169 

himself, and coming gradually back to his ordinary 
range of thought and feeling.' 

The argument of Mr. Wirt in support of the acts 
of the Legislature amendatory of the College charter, 
though overshadowed by Mr, Webster's, ' was a full, 
able, and most eloquent exposition of the rights of the 
defendant.' ' 

The opinion of the Court was delivered by 

Marshall, Gliief Justice. ' This is plainly a contract, 
to which the donors, the trustees, and the Crown (to 
whose rights and obligations New Hampshire suc- 
ceeds), were the original parties. It is a contract made 
on a valuable consideration. It is a contract for the 
security and disposition of property. It is a contract, 
on the faith of which real and personal estate has 
been conveyed to the corporation. It is, then, a con- 

' Webster to Wirt. Kennedy's Wirt, vol. ii., p. 82. It detracts 
somewhat from the value of Mr. Webster's commendation, when we 
find him, at the same time, writing thus to his friend, Jeremiah 
Mason : — ' Wirt followed. He is a good deal of a lawyer, and 
has very quick perceptions, and handsome power of argument ; but 
he seemed to treat this case as if his side could furnish nothing but 
declamation.' Private Correspondence, vol. i., p. 275. March 13th, 
1818. 

Again, in writing to Chief Justice Smith, he says : — ' Wirt has 
talents, is a competent lawyer, and argues a good cause well. In this 
case he said more nonsensical things than became him.' Ibid., p. 
276. March 14th, 1818. 

Nevertheless, and notwithstanding Mr. Pinkney, who desired to 
have the argument reopened, in order that he might address the 
Court in support of the assumed right of the State to amend the Col- 
lege charter, declared that Wirt's back was not strong enough, for 
such a case, his argument must be considered as one of very great 
merit. 



170 LIFE OF JOHN MARSHALL. 

tract within the letter of the Constitution, and within 
its spirit, also, unless the fact, that the property is in- 
vested by the donors in trustees for the promotion of 
religion and education, for the benefit of persons who 
are perpetually changing, though the objects remain 
the same, shall create a particular exception, taking 
this case out of the prohibition contained in the Con- 
stitution. ... On what safe and intelligible ground 
can this exception stand ? There is no expression in 
the Constitution, no sentiment delivered by its cotem- 
poraneous expounders, which would justify us in 
making it. In the absence of all authority of this 
kind, is there, in the nature and reason of the case 
itself, that which would sustain a construction of the 
Constitution not warranted by its words ? Are con- 
tracts of this description of a character to excite so lit- 
tle interest, that we must exclude them from the pro- 
visions of the Constitution, as being unworthy of the 
attention of those who framed the instrument? Or 
does public policy so imperiously demand their remain- 
ing exposed to Legislative alteration, as to compel us, 
or rather permit us, to say that these words, which 
were introduced to give stability to contracts, and 
which, in their plain import, comprehend this contract, 
must yet be so construed as to exclude it ?' 

An examination of the subject induces a negative 
answer to these queries ; and, hence, the opinion of 
the Court being, that the charter constituted a con- 
tract, whose obligation had been impaired by the Le- 
gislature of New Hampshire, it followed that the action 
of the Legislature was repugnant to the Constitution 
of the United States, and consequently void. 

At the same term of the Court that the case of 
Dartmouth College was argued, was also argued the 



CHIEF JUSTICE OF UNITED STATES. 171 

case of M'Culloch v. The State of Maryland.' It in- 
volved the question as to the constitutionality of the 
act incorporating the Bank of the United States. It 
had been a vexed question from the foundation of the 
Government. The opponents of the Bank insisted 
that no clause of the Constitution authorized Congress 
to create a corporation; that, though they were em- 
powered to make all laws ' necessary and proper' to 
carry into effect the powers conferred on the Govern- 
ment, yet such laws were only ^necessary and proper,' 
as were absolutely indispensable, and without which 
the powers conferred would be nugatory. On the other 
hand, it was contended, that, to carry on its operations, 
the Government must employ persons, and that their 
acting in an artificial capacity was not material, as 
the Government must be authorized to exercise a dis- 
cretion in the choice of agents, and that the power to 
make all 'necessary and proper' laws to carry into 
execution the enumerated powers, did not restrict Con- 
gress to the passage of only such laws as were abso- 
lutely necessary, but to such as were 'necessary' in 
the ordinary and usual meaning of the word. The 
case presented for the decision of the Court arose as 
follows : — 

*In April, 1816, Congress incorporated the Bank of 
the United States. In 1817, a branch of this Bank 
was placed at Baltimore, Maryland. In 1818, the 
Legislature of Maryland passed a law to tax all banks, 
or branches thereof, located in that State, and not 
chartered by its Legislature. The branch Bank re- 
fused to pay this tax, and M'Culloch, the cashier, was 
sued for it. Judgment being given against him in the 
Maryland Courts, he carried it before the Supreme 

' Wheaton, vol. iv., p. 316. 



172 LIFE OF JOHN MARSHALL. 

Court. Naturally enough, the decision of this tribunal 
was looked for with eager interest. * 

The counsel employed on either side were of the 
highest professional eminence. Pinkney, Wirt, and 
Webster appeared for the Bank; and Martin, Hopkin- 
son, and Jones for the State. Pinkney shone, on this 
occasion, with unrivalled splendor. He made the 
closing argument. ' I never, in my whole life,' says 
Judge Story, ' heard a greater speech. It was worth 
a journey from Salem to hear it ; his elocution was ex- 
cessively vehement, but his eloquence was overwhelm- 
ing. His language, his style, his figures, his argu- 
ments, were most brilliant and sparkling. He spoke 
like a great statesman and patriot, and a sound consti- 
tutional lawyer. All the cobwebs of sophistry and 
metaphysics about State rights and State sovereignty, 

he brushed away as with a mighty besom Mr. 

Pinkney possesses, beyond any man I ever saw, the 
power of elegant and illustrative amplification.' ' 

The opinion of the Court was, that the act incorpo- 
rating the Bank was constitutional ; that the Bank 
might properly establish a branch in the State of 
Maryland; and that Maryland could not, without 
violating the Constitution, tax that branch. 

» 
Marshall, Chief Justice. ^Although, among the enu- 
merated powers of Government, we do not find the 
word " bank," or " incorporation," we find the great 
powers to lay and collect taxes, to borrow money, to 
regulate commerce, to declare and conduct a war, and 
to raise and support armies and navies. The sword 
and the purse, all the external relations, and no incon- 
siderable portion of the industry of the nation, are 

' Story's Life and Letters, vol. i., p. 325. Story to White, March 
3d, 1819. 



CHIEF JUSTICE OF UNITED STATES. 173 

entrusted to its government.' 'The power being given, 
it is the interest of the nation to facilitate its execu- 
tion. It can never be their interest, and cannot be 
presumed to have been their intention, to clog and 
embarrass its execution by withholding the most ap- 
propriate means. Throughout this vast Republic, from 
the St. Croix to the Gulf of Mexico, from the Atlantic 
to the Pacific, revenue is to be collected and expended, 
armies are to be marched and supported. ... Is that 
construction of the Constitution to be preferred which 
would render these operations difficult, hazardous, and 
expensive? Can we adopt that construction (unless 
the words imperiously require it) which would impute 
to the framers of that instrument, when granting these 
powers for the public good, the intention of impeding 
their exercise by withholding a choice of means?' 
* The Government which has a right to do an act, and 
has imposed on it the duty of performing that act, 
must, according to the dictates of reason, be allowed to 
select the means; and those who contend that it may 
not select any appropriate means, that one particular 
mode of effecting the object is excepted, take upon 
themselves to prove the exception. . . . But the Con- 
stitution of the United States has not left the right of 
Congress to employ the necessary means for the execu- 
tion of the powers conferred on the Government to 
general reasoning. To its enumeration of powers is 
added that of making "all laws which shall be neces- 
sary and proper for carrying into execution the fore- 
going powers, and all other powers vested by this Con- 
stitution in the Government of the United States, or 
in any department thereof." To employ the means 
necessary to an end is generally understood as employ- 
ing any means calculated to produce the end, and not 
as being confined to those single means without which 



174 LIFE OF JOHN MARSHALL. 

the end would be entirely unattainable. . . . The good 
sense of the public has pronounced, without hesitation, 
that the power of punishment appertains to sove- 
reignty, and may be exercised whenever the sovereign 
has a right to act, as incidental to his constitutional 
powers. It is a means for carrying into execution all 
sovereign powers, and may be used, although not in- 
dispensably necessary. It is a right incidental to the 
power, and conducive to its beneficial exercise.' 'If the 
word necessary means needful, esseiitial, requisite, con- 
ducive to, in order to let in the power of punishment 
for the infraction of law,' why is it not equally com- 
prehensive when required to authorize the use of 
means which facilitate the execution of the powers of 
government without the infliction of punishment ?' 

Having thus arrived at the conclusion that the 
creation of a bank is warranted by the Constitution, 
the Chief Justice proceeds to inquire whether it or its 
branches may be taxed by the States. 

* That the power to tax,' said he, * involves the 
power to destroy ; that the power to destroy may de- 
feat and render useless the power to create; that there 
is a plain repugnance in conferring on one government 
a power to control the constitutional measures of 
another, which other, with respect to those very mea- 
sures, is declared to be supreme over that which exerts 
the control, are propositions not to be denied.' 'If the 

' As in the case of the power • to establish post-offices and post- 
roads.' From this has been inferred, without question or denial, the 
power to carrj the mail along the post-road, from one post-office to 
another ; and frooi this inferred power has again been inferred tho 
right to punish those who steal letters from the post-office, or rob fehe 
mail. 



CHIEF JUSTICE OF UNITED STATES. 175 

States may tax one instrument employed by the Gov- 
ernment in the execution of its powers, they may tax 
any and every other instrument. They may tax the 
mail ; they may tax the mint ; they may tax patent- 
rights; they may tax the papers of the custom-house j 
they may tax judicial process; they may tax all the 
means employed by the Government, to an excess 
which would defeat all the ends of government. This 
was not intended by the American people. They did 
not design to make their Government dependent on 
the States.' - 

^ In the case of Cohens v. State of Virginia,^ two very 
important questions were presented for adjudication, 
namely, whether the Court could exercise jurisdiction, 
one of the parties being a State, and the other a citi- 
zen of that State ; and, secondly, whether, in the exer- 
cise of its appellate jurisdiction, it could revise the 
judgment of a State Court, in a case arising under the 
Constitution, laws, and treaties of the United States. 
The Court held that it had jurisdiction in both in- 
stances. 

The facts involved in the case were these: — An act 
of Congress authorized the city of Washington to esta- 
blish a lottery, and, by virtue of the act, the lottery 
was established. Cohen was indicted, at Norfolk, Vir- 
ginia, for selling tickets of this lottery, contrary to a 
law of Virginia, prohibiting such sale. In the State 
Court, he claimed the protection of the act of Congress 
under which the lottery was established; but judgment 
being given against him, he sued out a writ of error to 

' Weston V. City of Charleston (Peters, vol. ii., p. 449) was decided 
on similar principles ; the Court holding that stock issued for IjDans to 
the Government cannot be taxed by States and corporations. 

' Wheaton, vol. vi., p. 264. 



176 LIFE OF JOHN MARSHALL. 

the Supreme Court of the United States. There the 
judgment of the State Court was sustained ; it being 
held that the lottery law did not control the laws of 
the States prohibiting the sale of the tickets. The 
chief interest of the case, however, depended on the 
question, whether the Supreme Court could take cog- 
nizance of it. And it is with reference to that point 
that the opinion of the Court is quoted. 

Marshall, Chief Justice. ' It [the Supreme Court] 
is authorized to decide all cases, of every description, 
arising under the Constitution or laws of the United 
States. From this general grant of jurisdiction no ex- 
ception is made of those cases in which a State may be 
a party. When we consider the situation of the Gov- 
ernment of the Union and of a State in relation to 
each other, the nature of our Constitution, the subor- 
dination of the State Governments to that Constitu- 
tion, the great purpose for which jurisdiction over all 
cases arising under the Constitution and laws of the 
United States is confided to the Judicial Department, 
are we at liberty to insert in this general grant an ex- 
ception of those cases in which a State may be a party? 
Will the spirit of the Constitution justify this attempt 
to control its words? We think it will not. We think 
a case arising under the Constitution or laws of the 
United States is cognizable in the Courts of the Union, 
whoever may be the parties to that case.' ' The laws 
must be executed by individuals acting within the 
several States. If these individuals may be exposed to 
penalties, and if the Courts of the Union cannot correct 
the judgments by which these penalties may be en- 
forced, the course of the Government may be, at any 
time, arrested by the will of one of its nietnbers. Each 
member will possess a veto on the will of the whole.' 



CHIEF JUSTICE OF UNITED STATES. 177 

'That the United States form, for many and fo** 
most important purposes, a single nation has not yei 
been denied.' ' These States are constituent parts of 
the United States. They are members of one great 
empire — for some purposes sovereign, for some pur- 
poses subordinate. In a government so constituted, is 
it unreasonable that the judicial power should be com- 
petent to give efficacy to the constitutional laws of the 
Legislature? That department can decide on the 
validity of the Constitution or law of a State, if it be 
repugnant to the Constitution or to a law of the United 
States Is it unreasonable that it should also be em- 
powered to decide on the judgment of a State tribunal 
enforcing such unconstitutional law? Is it so very un- 
reasonable as to furnish a justification for controlling 
the words of the Constitution ? We think not. . . . 
The exercise of the appellate power over those judg- 
ments of the State tribunals which may contravene the 
Constitution or laws of the United States is, we believe, 
essential to the attainment of those objects.' • 

In the case of Johnson v. M'lntosh,^ the Court held, 
that the Indians have only a right of occupancy to 
their lands, and are incapable to convey a title to them 
in fee. The plaintiff claimed certain lands under a 
private purchase from the Indians; the defendant held 
under the United States. 

Marshall, Chief Justice. ' We will not enter into 
the controversy, whether agriculturists, merchants, and 
manufacturers have a right, on abstract principles, to 
expel hunters from the territory they possess, or to 
contract their limits. Conquest gives a title which 



' Wheaton, vol. viii., p. 543, 
12 



178 LIFE OF JOHN MARSHALL. 

the courts of the conqueror cannot deny, whatever the 
private and speculative opinions of individuals may be, 
respecting the original justice of the claim which has 
been successfully asserted.' ' However extravagant 
the pretension of converting the discovery of an inha- 
bited country into conquest may appear; if the princi- 
ple has been asserted in the first instance, and after- 
wards sustained; if a country has been acquired and 
held under it ; if the property of the great mass of the 
community originates in it, it becomes the law of the 
land, and cannot be questioned. So, too, with respect 
to the concomitant principle, that the Indian inhabi- 
tants are to be considered merely as occupants, to be 
protected, indeed, while in peace, in the possession of 
their lands, but to be deemed incapable of transferring 
the absolute title to others. However this restriction 
may be opposed to natural right, and to the usages of 
civilized nations, yet, if it be indispensable to that sys- 
tem under which the country has been settled, and be 
adapted to the actual condition of the two people, it 
may, perhaps, be supported by reason, and certainly 
cannot be rejected by courts of justice.' 

Gibbons v. Ogden' was a case of great celebrity, and 
involved considerations of the most important charac- 
ter. New York granted to Robert R. Livingston and 
Robert Fulton, for a term of years, the exclusive right 
to navigate the waters of that State with boats moved 
by steam. From them Ogden derived the right to use 
such boats in the waters between Elizabethtown, New 
Jersey, and the city of New York. Gibbons put two 
steamboats on that route, and claimed that he had a 
right to do so, inasmuch as his boats were regularly 

' Wheaton, vol. ix., pp. 1-240. 



CHIEF JUSTICE OF UNITED STATES. 179 

licensed under the laws of Congress. The rights of 
the parties were litigated in the Courts of New York, 
and both the Court of Chancery and the Court of 
Errors sustained the validity of the State laws. Gib- 
bons now brought his case before the Supreme Court 
of the United States. It had attracted universal atten- 
tion, and the opinion of the tribunal of last resort was 
awaited with eager interest. 

Webster and Wirt appeared for Gibbons, and Emmet 
and Oakly for Ogden. ' To-morrow begin my toils in 
the Supreme Court/ wrote Wirt to his friend Judge 
Carr, * and about to-morrow week will come on the 
great steamboat question from New York. Emmet and 
Oakly on one side, Webster and myself on the other. 
Come down and hear it. Emmet's whole soul is in the 
cause, and he will stretch all his powers. Oakly is 
said to be one of the first logicians of the age ; as much 
a Phocion as Emmet is a Themistocles ; and Webster 
is as ambitious as CaBsar. He will not be outdone by 
any man, if it is within the compass of his power to 
avoid it. It will be a combat worth witnessing.' * 

The argument on both sides was conducted with 
consummate ability, but to Mr. Webster belongs the 
credit of suggesting the ground which constituted the 
basis of the reasoning and conclusions of the Court. 
The proposition he maintained was, that Congress has 
the exclusive authority to regulate commerce in all its 
forms, on all the navigable waters of the United States, 
their bays, rivers, and harbors, without any monopoly, 
restraint, or interference created by State legislation. 
It is said that ' Mr. Webster having stated his posi- 
tions to the Court, Judge Marshall laid down his pen, 

' Kennedy's Wirt. vol. ii., p. 142. Letter to Carr, Febraary 1st, 
1S24 



180 LIFE OF JOHN MARSHALL. 

turned up his coat-cufFs, dropped back upon his chair, 
and looked sharply upon him ; that Mr. Webster con- 
tinued to state his propositions in varied terms, until 
he saw his eyes sparkle, and his doubts giving way; 
that he then gave full scope to his argument; and 
that he never felt the occasion of putting forth his 
powers as when he was arguing a question before 
Judge Marshall." 

Marshall, Chief Jitsiice. *The word [commerce] 
used in the Constitution comprehends, and has been 
always understood to comprehend, navigation, within 
its meaning ; and a power to regulate navigation is as 
expressly granted as if that term had been added to 
the word '' commerce." ^ To what commerce does this 
power extend ? The Constitution informs us, to com- 
merce " with foreign nations, and among the several 
States, and with the Indian tribes." "It has been 
truly said that commerce, as the word is used in the 
Constitution, is a unit, every part of which is indicated 
by the term. If this be the admitted meaning of the 
word, in its application to foreign nations, it must 
carry the same meaning throughout the sentence, and 
remain a unit, unless there be some plain, intelligible 
cause which alters it. The subject to which the power 
is most applied is to commerce " among the several 
States." The word " among" means intermingled 
with. A thintj which is among others is intermingled 
with them. Commerce among the States cannot stop 
at the external boundary line of each State, but may 
be introduced into the interior. It is not intended to 
say that these words comprehend that commerce which 

' < Daniel Webster as a Jurist,' by Joel Parker, LL.D. 
' See Marshall's opinion to the same effect in the case of the Brig 
Wilson, Brockenbrough's C C. 11., vol. i., p. 423. 



CHIEF JUSTICE OF UNITED STATES. 181 

is completely internal, which is carried on between 
man and man in a State, or between different parts of 
the same State, and which does not extend to or affect 
other States. Such a power would be inconvenient, 
and is certainly unnecessary. Comprehensive as the 
word " among" is, it may very properly be restricted 
to that commerce which concerns more States than 
one.' 

' What is commerce '• among" them ? [the States,] 
and how is it to be conducted ?' ' Commerce among 
the States must, of necessity, be commerce with the 
States. . . . The power of Congress, then, whatever 
it may be, must be exercised within the territorial 
jurisdiction of the several States.' *What is this 
power ? It is the power to regulate ; that is, to pre- 
scribe the rule by which commerce is to be governed. 
This power, like all others vested in Congress, is com- 
plete in itself, may be exercised to its utmost extent, 
and acknowledges no limitations other than are pre- 
scribed in the Constitution.' ' It has been contended 
by the counsel for the appellant, that, as the word "to 
regulate" implies in its nature full power over the 
thing to be regulated, it excludes, necessarily, the 
action of all others that would perform the same 
operation on the same thing. That regulation is de- 
signed for the entire result, applying to those parts 
which remain as they were, as well as to those which 
are altered. It produces a uniform whole, which is as 
much disturbed and deranged by changing what the 
regulating power designs to leave untouched, as that 
on which it has operated. There is great force in this 
argument, and the Court is not satisfied that it has 
been refuted. Since, however, in exercising the power 
of regulating their own purely internal ailairs, whether 
of trading or police, the States may sometimes enact 



182 LIFE OF JOHN MARSHALL. 

laws, the validity of which depends on their interfering 
with, and being contrary to, an act of Congress passed 
in pursuance of the Constitution, the Court will enter 
upon the inquiry, whether the laws of New York, as 
expounded by the highest tribunal of that State, have, 
in their application to this case, come into collision 
with an act of Congress, and deprived a citizen of a 
right to which that act entitles him.' 

The result of the inquiry was, that the acts of New 
York were in collision with the act of Congress under 
which Gibbons derived his coasting license, and conse- 
quently, must yield to it; the Constitution and the 
laws made in pursuance of it being supreme. 

In the case of Osborn v. The United States Bank,* 
among other questions presented for the decision of 
the Court was the very difficult one, whether, since 
the Constitution has exempted a State from the suits 
of citizens of other States, the Supreme Court may act 
upon the agents employed by the State, and on the 
property in their hands ? Or, in other words, though 
the Court has no jurisdiction where the suit is against 
the State directly, has it such jurisdiction where the 
State, though not directly a party, is so indirectly, in 
consequence of her agents, acting by her order, and 
executing her mandates, being substituted in her 
place? 

Marshall, Chief Justice. *A denial of jurisdiction 
forbids an inquiry into the nature of the case. It ap- 
plies to cases perfectly clear in themselves ; to cases 
where the Government is in the exercise of its best 
•established and most essential powers, as well as to 
those which may be deemed questionable. It asserts 

' Wheaton, vol. ix., p. 738. 



CHIEF JUSTICE OF UNITED STATES. 183 

that the agents of a State, alleging the authority of a 
law void in itself, because repugnant to the Constitu- 
tion, may arrest the execution of any law of the United 
States. It maintains that, if a State shall impose a 
fine or penalty on an}^ person employed in the execu- 
tion of any law of the United States, it may levy that 
fine or penalty by a ministerial oificer, without the 
sanction even of its own courts; and that the indi- 
vidual, though he perceives the approaching danger, 
can obtain no protection from the judicial department 
of the Government. The carrier of the mail, the col- 
lector of the revenue, the marshal of a district, the re- 
cruiting officer, may all be inhibited, under ruinous 
penalties, from the performance of their respective 
duties ; the warrant of a ministerial officer may autho- 
rize the collection of these penalties, and the person 
thus obstructed in the performance of his duty may, 
indeed, resort to his action for damages, after the in- 
fliction of the injury, but cannot avail himself of the 
primitive justice of the nation to protect him in the 
performance of his duties. Each member of the Union 
is capable, at its will, of attacking the nation, of arrest- 
ing its progress at every step, of acting vigorously and 
effectually in the execution of its designs ; while the 
nation stands naked, stripped of its defensive armor, 
and incapable of shielding its agent or executing its 
laws, otherwise than by proceedings which are to take 
place after the mischief is perpetrated, and which must 
often be ineffectual, from the inability of the agents 
to make compensation.' 

' The question, then, is, whether the Constitution of 
the United States has provided a tribunal which can 
peacefully and rightfully protect those who are em- 
ployed in carrying into execution the laws of the 
Union, from the attempts of a particular State to resist 



184 LIFE OF JOHN MARSHALL. 

the execution of those laws. The State of Ohio denies 
the existence of this power, and contends that no pre- 
ventive proceedings whatever, or proceedings against 
the very property which may have been seized by the 
agent of a State, can be sustained against such agent, 
because they would be substantially against the State 
itself, in violation of the eleventh amendment of the 
Constitution.' ' Do the provisions, then, of the Ameri- 
can Constitution, respecting controversies to which a 
State may be a party, extend, on a fair construction 
of that instrument, to cases in which the State is not 
a party on the record ?' ' It may, we think, be laid 
down, as a rule which admits of no exception, that, in 
all cases where jurisdiction depends on the party, it is 
the party named on the record. Consequently, the 
eleventh amendment, which restrains the jurisdiction 
granted by the Constitution over suits against States, 
is, of necessity, limited to those suits in which a State 
is a party on the record. The amendment has its full 
effect, if the Constitution be construed as it would have 
been construed, had the jurisdiction of the Court never 
been extended to suits brought against a State by the 
citizens of another State, or by aliens.' 

In the case of Brown v. The State of Maryland,^ the 
interesting question came before the Court, whether a 
State can constitutionally require the importer of 
foreign articles to take out a license from the State, 
before being permitted to sell a bale or package so im- 
ported ? 

Marshall, Chief Justice. * There is no difference, in 
effect, between a power to prohibit the sale of an arti- 

' Wheaton, vol. xii., p. 419 



CHIEF JUSTICE OF UNITED STATES. 185 

cle and a power to prohibit its introduction into the 
country. The one would be a necessary consequence 
of the other. No goods would be imported, it" none 
could be sold. No object of any description can be 
accomplished by laying a duty on importation, which 
may not be accomplished with equal certainty by lay- 
ing a duty on the thing imported in the hands of the 
importer. It is obvious that the same power which 
imposes a light duty can impose a very heavy one, one 
which amounts to a prohibition. Questions of power 
do not depend on the degree to which it may be exer- 
cised. If it may be exercised at all, it must be exer- 
cised at the will of those in whose hands it is placed. 
If the tax may be levied in this form by a State, it 
may be levied to an extent which will defeat the reve- 
nue by import, so far as it is drawn from importations 
into the particular State.' ' It is sufficient, for the pre- 
sent, to say, generally, that, when the importer has so 
acted upon the thing imported that it has become in- 
corporated and mixed up with the mass oi property in 
the country, it has, perhaps, lost its distinctive charac- 
ter as an import, and has become subject to the taxing 
power of the State; but while remaining the property 
of the importer, in his warehouse, in the original form 
or package in which it was imported, a tax upon it is 
too plainly a duty on imports to escape the prohibi- 
tion in the Constitution.' ' It may be proper to add, 
that we suppose the principles laid down in this case 
to apply equally to importations from a sister State. 
We do not mean to give any opinion on a tax discri- 
minating between foreign and domestic articles.' ^ 

' In connectioQ with this case the reader will do well to read the 
cases of Thurlow v. Massachusetts ; Fletcher v. Rhode Island ; and 
Pierce v. New Hampshire; Howard's Reports, vol. v., p. 504. 



186 LIFE OF JOHN MARSHALL. 

In the case of Craig v. The State of Missouri,' an act 
of that State establishing loan offices, and authorizing 
the issue of certificates of stock, was declared void, as 
being repugnant to that clause of the Constitution 
which prohibits the States from emitting bills of 
credit. 

Marshall, Chief Justice. 'What is the character of 
the certificates issued by authority of the act under 
consideration? What office are they to perform? 
Certificates, signed by the auditor and treasurer of the 
State, are to be issued by those officers, to the amount 
of two hundred thousand dollars, of denominations not 
exceeding ten dollars, nor less than fifty cents. The 
paper purports, on its face, to be receivable at the trea- 
sury, or at any loan office of the State of Missouri, in 
discharge of taxes or debts due to the State.' ' Had 
they been termed "bills of credit," instead of "certifi- 
cates," nothing would have been wanting to bring them 
within the prohibitory words of the Constitution. And 
can this make any real difference ? Is the proposition 
to be maintained, that the Constitution meant to pro- 
hibit names and not things? That a very important 
act, big with great and ruinous mischief, which is ex- 
pressly forbidden by words most appropriate for its 
description, may be performed by the substitution of a 
name ? That the Constitution, in one of its most im- 
portant provisions, may be openly evaded by giving a 
new name to an old thing ? We cannot think so. We 
think the certificates emitted under the authority of 
this act are as entirely bills of credit as if they had 
been so denominated in the act itself.'^ 

' Peters' Reports, vol. iv., p. 411. 

* Compare Byrne v. The State of Missouri, Peters' Rep., vol. viii., 
D. 40; and Briscoe v. The Bank of Kentucky, ibid., vol. xi., p. 257. 



CHIEF JUSTICE OF UNITED STATES. 487 

The case of The Cherokee Nation v. The State of 
Georgia,' vvliich came before the Court at the January 
term, 1831, attracted universal attention, and was 
well calculated to enlist the sympathies of the Ameri- 
can people in behalf of the unfortunate Indians, whose 
clear and undeniable rights had been wrested from 
them by Georgia, without reference to the obligations 
the Government of the United States owed to them, 
and without any other consideration than to get rid of 
them and possession of their lands. But, while the 
conduct of Georgia is without justification, when 
viewed solely with reference to the Indians, it must 
be admitted, we think, that there was much in the 
policy of the General Government to provoke it, as 
the following brief statement of the case will show. 

By treaty with the Indians in 1791, the Government 
guaranteed to them tlieir lands. By agreement with 
Georgia, in 1802, the Government, in consideration 
of the cession to the United States by Georgia of the 
territory now included within the limits of Alabama 
and Mississippi, undertook to extinguish the title of 
the Indians to their lands within the limits of Georgia, 
' as soon as it could be done peaceably, and on reason- 
ble terms.' The lands, moreover, were not to be taken 
from the Indians without their consent, and the utmost 
good faith was to be observed towards them. But the 
Government, though having the means to extinguish 
the Indian title, and bound to do it within a reason- 
able time, failed to do so. In 1817, it is true, one-half 
of the tribe were induced to remove ; but it is believed 
that the whole nation might, at that time, have been 
persuaded to leave, had the Government used the ap- 
propriate means. Instead, however, of this being done, 

' Peters' Reports, vol. v., pp. 1-80. 



188 LIFE OF JOHN MARSHALL. 

the policy of the Government tended directly to make 
the Indians permanent residents of the soil. They 
were encouraged to become civilized, and, under the 
influence of this encouragement, were happily be- 
coming so. Cultivated farms, schools, and churched'', 
were seen among them; — admirable instruments for 
their elevation, but calculated to attach them more 
strongly to the soil, and render them averse to remo- 
val. Georgia complained that the policy of the Gov- 
ernment in thus civilizing the Indians, however bene- 
cial to them, was inconsistent with the obligations it 
owed to her. And we cannot help thinking that there 
was force in this complaint. 

In 1824, the Indians took a step which indicated 
very clearly that they never intended to leave their 
territory in Georgia for the wild hunting-grounds be- 
yond the Mississippi. They formed and adopted a 
constitution for a permanent government. Great ex- 
citement thereupon ensued throughout Georgia, and 
the Legislature passed a series of laws which went 
directly to annihilate the Cherokees as a political 
society, and to seize their lands for the use of the 
State ; lands which the United States had assured to 
them by the most solemn treaties. All this was fla- 
grantly unjust to the Indians, who w^ere innocent of 
any ofience to Georgia, and were entitled, if they de- 
sired it, to hold their lands forever, and be governed 
by their own laws and regulations, as a distinct com- 
munity. But, on applying to the Administration of 
General Jackson for aid in their troubles, they were 
told that the Government would not interfere. They 
then employed counsel, and a bill was brought before 
the Supreme Court, praying an injunction to restrain 
the State from the execution of the obnoxious laws. 
The State paid no attention to the proceeding, was not 



CHIEF JUSTICE OF UNITED STATES. 189 

represented at the hearing, and did not intend to 
respect an adverse decision. The argument on behalf 
of the Cherokees was conducted with uncommon abiUty 
and eloquence by Mr. Wirt, and John Sergeant of 
Philadelphia. The Court held, however, that they had 
no jurisdiction of the case. 

Marshall, Chief Justice. ^ If courts were permitted 
to indulge their sympathies, a case better calculated to 
excite them can scarcely be imagined. A people once 
numerous, powerful, and truly independent, found by 
our ancestors in the quiet and uncontrolled possession 
of an ample domain, gradually sinking beneath our 
superior policy, our arts, and our arms, have yielded 
their lands by successive treaties, each of which con- 
tains a solemn guarantee of the residue, until they re- 
tain no more of their former extensive territory than 
is deemed necessary to their comfortable subsistence. 
To preserve this remnant, the present application is 
made.' 

'Has this Court jurisdiction of the cause? The 
third article of the Constitution describes the extent 
of the judicial power. The second section closes an 
enumeration of the cases to which it is extended, with 
"controversies" "between a State, or the citizens 
thereof, and foreign States, citizens, or subjects." A 
subsequent clause of the same section gives the Su- 
preme Court original jurisdiction in all cases in which 
a State shall be a party. The party defendant may, 
then, unquestionably, be sued in this Court. May the 
plaintiff sue in it ? Is the Cherokee nation a foreign 
State in the sense in which that term is used in the 
Constitution ?' 

' Though the Indians are acknowledged to have an 
unquestionable, and heretofore unquestioned, right to 



190 LIFE OF JOHN MARSHALL. 

the lands they occupy, until that right shall be ex- 
tinguished by a voluntary cession to our Government: 
yet it may well be doubted whether those tribes which 
reside within the acknowledged boundaries of the 
United States can, with strict accuracy, be denomi- 
nated foreign nations. They may, more correctly, 
perhaps, be denominated domestic dependent nations.' 
* They and their country are considered by foreign 
nations, as well as by ourselves, as being so completely 
under the sovereignty and dominion of the United 
States, that any attempt to acquire their lands, or to 
form a political connection with them, would be con- 
sidered by all as an invasion of our territory, and 
an act of hostility.' ' The Court has bestowed its 
best attention on this question, and, after mature 
deliberation, the majority is of opinion that an Indian 
tribe or nation is not a foreign State in the sense of 
the Constitution, and cannot maintain an action in 
the Courts of the United States.' 

One of the laws of Georgia relating to the Chero- 
kees, prohibited any white person from residing within 
the limits of the Indian territory without a license 
from the Governor, and without taking an oath to 
support and defend the Constitution and laws of the 
State. This law was aimed at the missionaries residing 
among the Indians, and who were supposed to be in- 
imical to the policy of Georgia with regard to them. 
Sanmel A. Worcester, a citizen of Vermont, was one 
of these missionaries. He iiad been sent out in that 
capacity by the American Board of Foreign Missions, 
and with the sanction of the President of the United 
States. Refusing to comply with the law of Georgia, 
he and six others, who occupied the same position with 
himself, were arrested, tried, and convicted for its 



CHIEF JUSTICE OF UNITED STATES. 191 

violation, and each sentenced to four years' imprison- 
ment at hard labor in the penitentiary. A pardon waa 
then offered them on condition that, in the future, they 
would conform to the policy of the State. Five of the 
missionaries accepted the pardon ; but Worcester, and 
another, the Rev. Elizur Butler, refused it. The inter- 
position of the Supreme Court was now invoked in 
their behalf, and their cause was argued by the same 
counsel who had appeared for the Indians. The Court 
held that the law under which they were convicted 
was void, as being repugnant to the Constitution, 
laws, and treaties of the United States, and that the 
judgment of the Georgia Court ought to be reversed 
and annulled. 

Marshall, Chief Justice. 'The treaties and laws of 
the United States contemplate the Indian territory as 
completely separated from that of the States ; and pro- 
vide that all intercourse with them shall be carried on 
exclusively by the Government of the Union.' ' The 
Cherokee nation, then, is a distinct community, occu- 
pying its own territory, with boundaries accurately 
described, in which the laws of Georgia can have no 
force, and which the citizens of Georgia have no rigut 
to enter, but with the assent of the Cherokees them- 
selves, or in conformity with treaties, and with the 
acts of Congress. The whole intercourse between the 
United States and this nation is, by our Constitution 
and laws, vested in the Government of the United 
States. The act of the State of Georgia, under which 
the plaintiff in error was prosecuted, is, consequently, 
void, and the judgment a nullity.'^ 

' Worcester v. Georgia, Peters' Reports, vol. vi., pp. 515-597. 
The Georgia authorities paid no attentioa to this decision of the 



192 LIFE OF JOHN MARSHALL. 

The judicial opinions of the Chief Justice which we 
have cited in the preceding p.ages will give the general 
reader an idea of his style and mode of reasoning. The 
march of his mind was in a direct line. He proceeded 
straight onward to his conclusions. He did not en- 
cumber himself, nor embarrass others with a mass of 
authorities. Discerning, as if by intuition, the prin- 
ciple upon which the decision must depend, he did 
not look far for cases either to illustrate or support it. 
Witness his judgment in the Dartmouth College case. 
In truth, however, on questions of constitutional law, 
there were no precedents to guide him. He was neces- 
sarily obliged to rely on the native strength of his 
mind ; and it is here that his unrivalled penetration, 
his powers of analysis and combination, are most con- 
spicuously displayed. In the decisions of what other 
jurist do we find such simple, connected, compacted, 
demonstrative reasoning? In acquisitions, in various 
legal knowledge, he has been surpassed by others; but 
for grasp of intellect, and profoundness of judgment, 
where shall we look for his equal ? He was less de- 
pendent on mere learning than others ; for, so distin- 
guishing were his faculties, and so exquisite his pene- 
tration, that he unfolded the original principles which 
lie at the very foundations of the law. By the clear 
light of his reason he could 



' sit in tlie centre and enjoy bright day/ 

He had the 'liberal heart' and 'judging eye,' the 
clear head, and sound, good sense that insure wisdom 
of decision. By strict adherence to recognised autlio- 

Supreme Court, kept the uiissionaries in the penitentiary a year and 
a half under the judgment which that Court had declared utterly 
void, and only released them, at last, when the State had accom- 
plished its objects with regard to the Indians, 



CHIEF JUSTICE OF UNITED STATES. 193 

rities, an industrious and conscientious, though infe- 
rior man, may make a good judge; he will not be 
hkely to go very far wrong, or give much occasion for 
complaint. But when 'a new and troubled scene is 
opened, and the file affords no precedent,' then medi 
ocrity is placed in a situation of infinite difficulty, and 
may do infinite mischief. Precisely in such a situa- 
tion did the extraordinary abilities of Marshall find 
their most fitting theatre for display. Then was seen 
with what ease he could disentangle the complicated 
web which had vainly taxed the skill of others ; with 
what rare facility he could * penetrate, resolve, com- 
bine,' and with what an irradiating spirit he advanced 
to his conclusions. 

* Enter but that hall,' says Judge Story, *and you 
saw him listening with a quiet, easy dignity to the dis- 
cussions at the Bar; silent, serious, searching; with a 
keenness of thought which sophistry could not mislead, 
or error confuse, or ingenuity delude; with a benignity 
of aspect which invited the modest to move on with 
confidence ; with a conscious firmness of purpose which 
repressed arrogance, and overawed declamation. You 
heard him pronounce the opinion of the Court in a low, 
but modulated voice, unfolding in luminous order 
every topic of argument, trying its strength, and mea- 
suring its value, until you felt yourself in the presence 
of the very oracle of the law.'^ 

In forming his opinions, he depended more upon 
general principles than cases, though he yielded all 
proper respect to authority. ' He seized,' says Judge 
Story, 'as it were by intuition, the very spirit of juri- 

' Story's Discourse, p. 68. 



194 LIFE OF JOHN MARSHALL. 

dical doctrines, though cased up in the armor of cen- 
turies; and he discussed authorities, as if the very 
minds of the judges themselves stood disembodied be- 
fore him." 
• No judge, perhaps, was ever regarded with more 
veneration and affection than Chief Justice Marshall. 
The Bar and the country appreciated, anil with pride 
and pleasure did homage to his extraordinary merits. 
In the discharge of his high duties there was so much 
gentleness, modesty, and simplicity, united with such 
depth and compass of mind, that the profession loved 
him quite as much as they admired and respected him. 
His demeanor on the Bench was a model of judicial 
dignity and courtesy. Whether the counsel was emi- 
nent, or comparatively little known, he listened with 
the same attention, patience, and respect. 'He was 
endowed by nature,' says Mr. Binney, ' with a patience 
that was never surpassed — patience to hear that 
which he knew already, that which he disapproved, 
that which questioned himself. When he ceased to 
hear, it was not because his patience was exhausted, 
but because it ceased to be a virtue.' ^ An illustration 
of this latter remark may be found in the following 
anecdote, as related by Judge Story. He used to tell 
with glee, that Chief Justice Marshall, on one occa- 

' Story's Discourse, p. 70. The criticism of Lord Stowell. however, 
was hardly applicable to him. ' I rather think,' says that renowned 
magistrate, <we are too fond of cases; when a matter is to be argued, 
we look immediately for the cases, and by them we are determined 
more than, perhaps, by the real justice that belongs to the question ; 
this may enforce the uniformity of the law, which is certainly a very 
desirable purpose, but is by no means the first purpose that ought to 
be considered ; for, if the judgment be erroneous, it is but an indif- 
ferent exposition of the law.' Story's Life and Letters, vol. i., p. 554. 
May 17th, 1828. 

* Eulogy on John Marshall, p. 58. 



CHIEF JUSTICE OF UNITED STATES. 195 

sion, when a very pompous and tedious advocate was 
arguing a case before the Supreme Court, and going 
back to the undisputed and preadamite rules of the 
law, interrupted the course of his argument by say- 
ing : — ' Mr. C , I think this is unnecessary. There 

are some things which a Court constituted as this is 
may be presumed to know.'' 

The Supreme Court, in his day, was an object of 
great attraction, and he the most interesting figure 
of the scene. 'At some moments,' says Miss Marti- 
neau, who was at Washington in the winter of 1835, 
' this Court presents a singular spectacle. I have 
watched the assemblage while the Chief Justice was 
delivering a judgment; — the three judges on either 
hand gazing at him more like learners than associates ; 
Webster standing firm as a rock, his large, deep-set 
eyes wide awake, his lips compressed, and his whole 
countenance in that intent stillness which instantly fixes 
the eye of the stranger; — Clay leaning against the desk 
in an attitude whose grace contrasts strangely with the 
slovenly make of his dress, his snuff-box for the mo- 
ment unopened in his hand, his small, gray eye and 
placid half-smile conveying an expression of pleasure, 
which redeems his fiice from its usual unaccountable 
commonness ; — the Attorney-General,^ his fingers 
playing among his papers, his quick black eye, and thin 
tremulous lips for once fixed, his small face, pale with 
thought, contrasting remarkably with the other two; 
— these men, absorbed in what they are listening to, 
thinking neither of themselves, nor of each other, while 
they are watched by the groups of idlers and listeners 
around them, — the newspaper corps, the dark Cherokee 



Story's Life and Letters, vol. ii., p. 596. 
Benjamin F. Butler. 



196 LIFE OF JOHN MARSHALL. 

chiefs, the stragglers from the far west, the gay ladies 
in their waving plumes, and the members of either 
House that have stepped in to listen, — all these have 
I seen at one moment constitute one silent assemblage, 
while the mild voice of the aged Chief Justice sounded 
through the Court.' * 

Having now contemplated Chief Justice Marshall 
as a magistrate, we shall proceed to trace his footsteps 
in other scenes of labor and public service. 

Martineau's Western Travel, vol. i., p. 275, English ed. 



CHAPTER XII. 

1800-1806. 
HIS BIOGRAPHY OF WASHINGTON. 

General Washington, as is well known, be* 
queathed all his valuable public and private papers to 
his favorite nephew, Mr. Justice Washington. When 
this circumstance came to the knowledge of the public, 
a Life of that eminent person, prepared from materials 
so copious and authentic, was eagerly anticipated. The 
publishers, too, foreseeing a large demand for such a 
work, early applied to Judge Washington to purchase 
the copy-right. In reply to a letter of this kind from 
Mr. Caleb P. Wayne, at that time editor and proprietor 
of the United States Gazette, he says : — ' With Gene- 
ral Marshall, who is to write the history, I consulted, 
when I saw him in February last, respecting the pro- 
position which you and others had made to purchase 
the copyright, with a view to making some estimate 
of its value ; but being ignorant of such matters, we 
were unable to form even an opinion on the subject, 
particularly at this early stage of the work. We shall, 
therefore, decline any negotiation upon the subject for 
the present, but will keep in remembrance your two 
propositions, and will write you again when the work 
is more advanced.' ^ 

' MS., April 11th, 1800. Washington died December 14th, 1799. 

197 



198 LIFE OF JOHN MARSHALL. 

The agreement between Judge Washington and the 
Chief Justice seems to have been a very equitable 
one ; the former was to furnish the papers, and the 
latter to prepare the biography, and the amount ob- 
tained for the copyright was to be divided equally be- 
tween them. What estimate they placed upon this 
will be seen from the following extract of a letter 
written by Judge Washington to Wayne, at a time 
when the advanced condition of the work enabled 
them to form an opinion upon the subject : — 

' Great exertions,' thus he writes, ' will be made to 
finish it in the course of the next year; and we are 
not without hopes of success, if the present order of 
the Courts be not disturbed, or very materially changed. 
At any rate, man}' of the volumes will be ready in 
that time, and may be put to press. . . . We have 
endeavored to form some estimate of the value of this 
work, with a view to a reasonable price at which to 
dispose of it. We suppose that less than a dollar a 
volume cannot be thought of; and, upon the calcula- 
tion of thirty thousand subscribers in America, this 
would amount to $150,000, supposing there to be five 
volumes. This, that is, a dollar a volume, would con- 
tent us, whilst it would leave a very large profit to the 
purchaser, and a still larger profit should he be also 
the printer. But the subscriptions may exceed or fall 
short of the number mentioned, and, to escape the 
trouble of that part of the business, we will consent to 
receive $100,000 for the copyright in the United 

States ; less than this sum we will not take 

Should you wish to purchase the entire right to this 
work, to dispose of in Europe as well as in the United 
States, you will say so; and, knowing the grounds 
upon which we calculate the value in the United 



HIS BIOGRAPHY OF WASHINGTON. 199 

States, I could wish you to make an offer for the 
whole. We have received propositions for the pur- 
chase of the right to sell in Great Britain, upon which 
we have not yet decided.' ' 

In a subsequent letter to Wayne, he says : — 'To 
your ideas upon this subject I have given the fullest 
consideration ; and I cannot help thinking that, how- 
ever I may have exceeded or fallen short of the pre- 
cise value of the work in question, the grounds 
of calculation which you assume must be erroneous. 
In asking for the author one dollar per volume, I 
think it impossible that I can be charged with de- 
manding too much. The profit which this will leave 
to the printer and purchaser of the copyright is im- 
mense, and I choose it should be so. If I miscalculated 
then, in anything, it was in overrating the number of 
subscribers to be obtained in this country. I certainly 
believe that I was not very inaccurate as to this part 
of the subject. ... As to the number you speak of, I 
can have no doubt but that it could be obtained in 
either of the four large towns in the United States.' 
' Upon the whole, although I sincerely think that the 
sum mentioned in my former letter is a moderate esti- 
mate of the value of the American copyright, yet I 
acknowledge myself very little acquainted with the 
subject, and as apt as other men to be deceived. If 
you prefer a total abandonment of this right for a gross 
sum, and will state the highest sum which you think 
it prudent to offer, I will consider it, and give you both 
a speedy and candid answer. After having disclosed 
the ground upon which I made my calculation, and 
assured you of the sincerity with which it was made, 

' MS., December 11th, 1801. 



200 LIFE OF JOHN MARSHALL. 

I should be at a loss for some principle upon which to 
natne a smaller sum. Your superior information upon 
subjects of this kind may suggest reasons not per- 
ceived by me at this time. My wish is, that the pur- 
chaser may be not only safe, but liberally rewarded for 
the trouble he must encounter/ * 

Soon after receiving this letter, Wayne made Judge 
Washington a visit at his place in Virginia, and, while 
there, agreed to buy the American copyright for 
seventy thousand dollars, provided he could furnish 
satisfactory security for the payment of the money. 
But his friends were unwilling to become liable for so 
large an amount, though ready to be bound for any 
sum which he might actually receive. In the latter 
case, as he wrote the Judge, ' the security would be 
ior my integrity, and nothing would be involved in the 
success of the work.'^ He therefore proposed, in place 
of a gross sum, to pay one dollar a volume for each copy 
of the work subscribed for, and to encounter all the 
trouble and expense of obtaining subscribers. After 
consulting with Judge Marshall upon the subject, 
Judge Washington, though still preferring a gross 
sum, acceded to Wayne's proposal. ' We cannot gra- 
tify the desire we feel to conform to your situation,' 
thus he writes, ' without yielding that point, and we 
shall do so. A prospectus will be prepared and for- 
warded shortly, for I agree with you that the sooner 
you set on foot the subscription the better.' •'' 

' MS., Washington to Wayne, January 22d, 1802. 

* MS., Wayne to Washington, March 17th, 1802. 

' MS., May 9th, 1802. The contract was executed September 
22d, 1802. 'The said Wayne,' so it was expressed, 'agrees to pay 
to the said Washington, his executors, administrators, and assigns, 
one dollar for every volume of the aforesaid work which may be sub- 



HIS BIOGRAPHY OF WASHINGTON. 201 

Although Marshall had not been announced as the 
author of the proposed Life of Washington, yet the 
fact soon became generally known, and awakened no 
little jealousy and apprehension on the part of the Re 
publicans. His politics were so decided, that it was 
assumed that he would give a party bias to the work. 
Two years before the first volume was published, Jef- 
ferson, with his usual facility in stating conjectures as 
facts, thus wrote his friend Joel Barlow, the author of 
the Columbiad, who was then residing at Paris : — 

' Mr. Madison and myself,' he says, * have cut out a 
piece of work for you, which is, to write the history 
of the United States, from the close of the war down- 
wards. We are rich ourselves in materials, and can 
open all the public archives to you; but your resi- 
dence here is essential, because a great deal of the 
knowledge of things is not on paper, but only within 
ourselves, for verbal communication. John Marshall 
is writing the Life of General Washington from his 
papers. It is intended to come out just in time to in- 
fluence the next Presidential election. It is written, 
therefore, principally with a view to electioneering 
purposes. But it will, consequently, be out in time to 
aid you with information, as well as to point out the 
perversions of truth necessary to be rectified. Think 
of this, and agree to it.' ' 

The assertions thus hazarded by Jefferson as to the 
character and designs of the work were totally un- 
founded. * The Democrats may say what they please,' 
wrote Judge Washington, * and I have expected they 

scribed for, or wliich may be sold and paid for at any time during the 
continuance of the copyright.' 

' Jefferson's Works, vol. iv., p. 437. May 3d, 1802. 



202 LIFE OF JOHN MARSHALL. 

would say a great deal ; but this is, at least, not in- 
tended to be a party work, nor will any candid man 
have cause to make this charge.' ' The contrary impres- 
sion, nevertheless, had an unfavorable influence in the 
canvass for subscribers. Weems, who had been rector of 
Mount Vernon parish, was one of the soliciting agents 
for the work. In a letter to the publisher from Bal- 
timore, he says : — ' The people are very fearful that 
it will be prostituted to party purposes. I mean, of 
course, the Life of Washington. For Heaven's sake, 
drop now and then a cautionary hint to John Mar- 
shall, Esq.'^ This sort of impression respecting the 

' MS., Washington to Wayne, November 19th, 1802. 

* MS., Mason L. Weems to C. P. Wayne, December 14th, 1802. 
As a book agent, Weems displayed unrivalled tact and activity. The 
following extract from one of his letters to Wayne, dated Annapolis, 
Md., December 22d, 1802, will show his mode of procedure. On his 
arrival there he found the Legislature in session. ' I instantly deter- 
mined,' he says, ' the House still in session, to congregate them. 
Next morning I threw in a note to the Chair, soliciting the honor of 
uttering before them & patriotic oration. They came together. They 
were pleased, and have begun to subscribe.' * Patriotic orations ! 
Gazette puffs ! Washingtonian anecdotes ! sentimental, moral, mili- 
tary, and wonderful ! — all should be tried, and every exertion made 
to push into every family, into every hand, so very interesting and 
highly moralizing a work as yours ] but, alas ! I am not able to do it 
on my present allowance.' It was on this idea of creating a sensa- 
tion that Weems wrote his Lives of Washington, Marion, Franklin, 
and Penn ; and the extraordinary success of those books shows that 
he possessed a profitable knowledge of human nature. 

In a letter to Wayne from Frederick, Md., April 8th, 1803, he 
says : — ' Give old Washington fair play, and all will be well. I 
mean, let but the interior of the work be liberal, and the exterior 
elegant, and a town house and a country house, a coach, and sideboard 
of massy plate, shall all be thine. I sicken when I think how much 
may be marr'd. . . . God ! I pray him, grant this work may bring 
moral blessings on our country, and honor and wealth on C. P. W. 
and M L. W. 



HIS BIOGRAPHY OF WASHINGTON. 203 

work, coupled with the more serious objection to its 
cost, soon proved the fallaciousness of the expectations 
that had been entertained with regard to the demand 
for it. Instead of thirty thousand subscribers, as Judge 
Washington had anticipated, the number actually ob- 
tained fell short of eight thousand. 

Owing to the pressure of his judicial duties, and the 
time and labor required to examine many trunks of 
papers, Marshall was unable to hasten the work as 
rapidly as the impatience of the subscribers demanded. 
They clamored loudly at the delay, but it was un- 
avoidable. It was not until the winter of 1803—4, that 
the first volume was placed in the hands of the printer. 
It was Marshall's intention that his name should not 
appear as the author of the work ; and he only yielded 
the point to the wishes of others. 

Unless there be some law,' thus he wrote his son, 
* which I have not seen, the Clerk of the District 
Court, in my opinion, transcends his duty, and re- 
quires more than the act of Congress requires, when 
he demands the name of the author. If he persists in 
the demand, I wish Mr. Wayne to inform me of it, and 
I will then consult with Mr. Washington on the course 
to be pursued. But I wish Mr. Wayne, when he re- 
ceives the title-page, which was sent some time since 
with the preface to Mr. Washington, to present it to 
the Clerk, and to call his attention to the law. I do 
not wish to give in my name as the author, and will 
only do so if it be unavoidable. The book is expressed 
to be written under the inspection of Judge Washing- 
ton, and that, in my opinion, is more than sufficient. 

' I wish Mr. Wayne to write freely to me on this 
subject, and to suggest, without difficulty, anything 
which occurs to him. I am not among those who feel 



204 LIFE OF JOHN MARSHALL. 

wounded at a criticism on my writings, and in the pre 
sent instance, at least, would much rather it should be 
directly made, than felt and suppressed. I am much 
inclined to believe that the first part of the work is too 
minute in its details, and have often regretted that I 
did not abridge it/^ 

In a subsequent letter to Wayne he says : — * My 
repugnance to permitting ray name to appear in the 
title still continues ; but it shall yield to your right to 
make the best use you can of the copy. I do not my- 
self imagine that the name of the author being given 
or withheld can produce any difference in the number 
of subscribers ; but if you think differently, I should 
be very unwilling, by a pertinacious adherence to 
what may be deemed a mere prejudice, to leave you 
in the opinion that a real injury has been sustained. 
I have written to Mr. Washington on this subject, and 
shall submit my scruples to you and him, only request- 
ing that my name may not be given but on mature 
consideration and conviction of its propriety. If this 
shall be ultimately resolved on, I wish not my title in 
the Judiciary of the United States to be annexed to 
it. Mr. Washington will probably write to you ; but 
I have requested that no decision be made, unless it 
shall be necessary, till I see him, which will be at 
Washington, early in February.' ^ 

The question thus referred to Judge Washington 
was promptly decided. ' The Chief Justice,' he says, 
in a letter to Wayne, * with great reluctance consents 

' MS., December 23d, 1803. Letter to Thomas Marshall. Young 
Marshall, at this time, was iu college at Princeton ; but, at the date 
of his father's letter, staying for a few days in Philadelphia. 

^ MS., Marshall to C. P. Wayne, January 10th, 1804. 



HIS BIOGRAPHY OF WASHINGTON. 205 

that his name as author may be inserted in the title- 
page, provided I insist upon it. It gives me pain to 
decide against his wishes ; but I really think it neces- 
sary, for many reasons. He requests, however, that 
his name may be modestly introduced, without any 
addition of the title he bears as a member of the Judi- 
ciary. It will, I presume, be sufficient to say, " By 
John Marshall." He is of opinion that there is no 
necessity for inserting the number of volumes in the 
title-page, and in this I concur with him. It would be 
very embarrassing in this instance if it were other- 
wise, for it is next to impossible, at this time, to say 
whether there will be four or five volumes.' ' 

That innate modesty which pervaded Marshall's 
character, and diffused itself through all his actions, 
is very conspicuous in the letters addressed to his 
publisher during the progress of his work. ' If Mr. 
Short is in Philadelphia,' thus he wrote Wayne, 
'present, with my compliments, my thanks for the 
aid he has been so good as to give you, and tell 
him the obligation would have been much greater, 
if he would more freely have corrected the inaccu- 
racies which must have presented themselves to 
him as well as you. Indeed, my dear Sir, I am per- 
suaded that I have reason to complain of you. I 
feared that you would not censure and alter freely, 
and, therefore, particularly requested that you would 
do so. I do not think you can have complied with my 
wishes. You mistake me very much, if you think I 
rank the corrections of a friend with the bitter sar- 
casms of a foe, or that I should feel either wounded or 
chagrined at my inattentions and inaccuracies being 
pointed out by another. I know there are many and 

• MS., January 24th, 1804. 



206 LIFE OF JOHN MARSHALL. 

great defects in the composition — defects which I 
shall lament sincerely, and feel sensibly, when I shall 
see the work in print. The hurried manner in which 
it is pressed forward renders this inevitable.'* 

Owing to his other engagements, and the urgency 
of the publisher for the manuscript, he was unable to 
give the work that thorough revision and retrench- 
ment which were required ; and, from another cause, 
was prevented from even correcting the proof-sheets. 
* Although I ought to have known,' he says, * that 1 
was too far from Philadelphia to inspect the proof- 
sheets, I had still unaccountably considered the cor- 
rections I had made as to find a place in the first im 
pression, and am not a little mortified to discover my 
mistake. There are, however, some very few inaccu- 
racies which you will readily perceive ought to be 
mentioned in the errata. These are, where some word 
is obviously omitted, or has been mistaken for another. 
... I regret your determination to print a second 
edition immediately. I have not time to correct the 
first at present, nor can I have time till the work 
shall be completed. The employment of finishing the 
fourth volume, and of superintending the copying, 
added to my various other avocations, absolutely dis- 
able me from giving the sheets you send me such a 
reading as I can be satisfied with. The third volume 
has been, for some time, in Mr. Washington's hands, 
and I should hope has been forwarded to you before 
this time. . . . K you make an additional impression, 
I hope it will be a very small one, and I cannot con- 
sent to its being stated to be revised and corrected by 
the author. It would, perhaps, be as well to make the 

' MS., April, 1804. 



HIS BIOGRAPHY OF WASHINGTON. 207 

amendments which I have suggested, and to add to 
the number of the first edition so much as there may 
be an absolute demand for. I am anxious, before the 
books shall be very much multiplied, to give them a 
very serious reading at perfect leisure, and prepare 
them for a second edition. There are really errors in 
the present publication which manifest a greater de- 
gree of carelessness than I had suspected when I had 
only seen the manuscript.' 

* My state of health requires that I should pass the 
residue of the summer in the mountain country. As 
I cannot take the papers with me to prosecute the 
work, I had proposed to retain the first volume, and 
to read it while in the country. Perhaps the transmis- 
sion of the third to you will enable you to leave the 
first with me. I wish to know your situation in this 
respect.' ' 

The following letter was written after the first 
volume of the work had been published : — 

* Sir : — I have received your letter with part of the 
sheets of the second volume, and your resolution to 
postpone the second edition of the first. I am just 
setting out for the upper country, where I shall give 
the first volume one considerate reading, and then for- 
ward it to you by the post. You will please to direct 
to me at Front Royal, Frederick County, Virginia. . . . 
I have no doubt that the errors noticed are princi- 
pally, if not entirely, in the manuscript. Some very 
few, I believe, are not ; but they are very few. I am 
confident of the care you have bestowed on the sub- 
ject, and wish every other person could have performed 

' MS. Letter to Wayne, July 4th, 1804. 



208 LIFE OF JOHN MARSHALL. 

his part with as much attention and exactness as you 
have done. I thank you for the two papers you sent 
me. I take the Gazette of the United States, and 
shall, of course, see anything which may appear in 
that paper. The very handsome critique in the Politi- 
cal and Commercial Register was new to me. I could 
only regret that there was in it more of panegyric than 
was merited. The editor of that paper, if the author 
of the critique, manifests himself to be master of a 
style of a very superior order, and to be, of course, a 
very correct judge of the compositions of others. 

' Having, Heaven knows how reluctantly, consented 
against my judgment to be known as the author of 
the work in question, I cannot be insensible to the 
opinions entertained of it; but I am much more 
solicitous to hear the strictures upon it, than to know 
what parts may be thought exempt from censure. As 
I am about to give a reading to the first volume, and 
as not much time can be employed upon it, the stric- 
tures of those who are either friendly or hostile to the 
work may be useful, if communicated to me, because 
they may direct my attention to defects which might 
otherwise escape a single reading, however careful that 
reading may be. I will, therefore, thank you to con- 
vey to me at Front Royal every condemnatory criti- 
cism which may reach you. It would be impossible, 
and I shall not attempt to polish every sentence. That 
would require repeated readings, and a long course of 
time ; but I wish to correct obvious imperfections, and 
the animadversions of others would aid me very much 
in doing so.'' 

In reply to this letter Wayne thus writes: — * Every 
■ MS., Marshall to Wayne, July 20tli, 1804. 



HIS BIOGRAPHY OF WASHINGTON. 209 

review of the work which I can lay my hand on shall 
be forwarded to you. The editor of the Commercial 
and Political Register is William Jackson, Esq., for- 
merly, I believe, an aid to General Washington, and 
recently dismissed from a situation in the custom-, 
house. He bears the title of Major. You will pardon 
me for mentioning what I have heard spoken of as a 
fault in the work ; it is where the enemy is spoken of. 
It has been suggested that an author ought not to 
write as an American, but assume an independent 
ground. I understand the volume will be reviewed 
in a magazine published here. I shall send it.' ' 

*I have the pleasure of being acquainted with 
Major Jackson,' says Marshall in answer to the above, 
* and have a high opinion of his taste and judgment. 
I heard him deliver a very excellent oration on the 
death of General Washington — one of the best which 
that melancholy occasion produced. You need make 
no apology for mentioning to me the criticism on the 
word " enemy." I am glad you have done so. I will 
endeavor to avoid it where it can be avoided. It has, 
probably, been used improperly, and unnecessarily, but 
may, I think, be occasionally employed without cen- 
sure. A historian, it is true, is of no nation, but' the 
person whose history he writes is ; and the word is 
used to denote, not the enemy of the author, but of 
the person or army whose actions the historian is 
relating. I wish, however, if it can be done, that the 
third volume may be corrected in this respect, when, 
without repetition, the term may be changed. For 
the first and second the correction can only be made 
for the second edition. 



14 



• MS., Wayne to Marshall, July 25th, 1804. 



210 LIFE OF JOHN MARSHALL. 

* I am just finishing a review of the first volume, and 
am mortified beyond measure to find that it has been 
so carelessly written. Its inelegancies are more nume- 
rous than I had supposed could have appeared in it. I 
have thought it necessary to reconstruct very many of 
the sentences, and am sorry to impose on you the task 
of changing your types so materially. I hope you have 
not printed a greater number of the second volume 
than you have of the first, and that you will not print 
a greater number of the third. I lament that the first 
edition is so large as you ha^^e made it. ... I have 
directed my son to make a present to the Whig Society 
in Princeton of a copy of the work. I could wish it to 
be of the second edition.'' 

The criticism of Major Jackson's upon the first 
volume bestows merited praise upon the author, and 
more reservedly, perhaps, applause upon his work. 

*The first volume of the Life of Washington,' he 
says, * has now been some time before the public. The 
author of this work, Mr. Marshall, has every claim to 
stand in the foremost rank of our distinguished men. 
To the merit which belongs to professional exaltation 
he has added that of an able ambassador, and an elo- 
quent legislator. Passing from these characters, he 

' MS. Letter to Wayne, August 10th, 1804. In the following year 
he requests Wayne to send a copy of the work, so far as completed, 
to his friend, the late President of the United States. ' I will thank 
you,' he writes, ' to take some opportunity of sending three volumes 
to Mr. Adams, with the following words written on a blank leaf in 
each : — " Mr. Adams is requested to accept a copy of the Life of 
Washington, as a small mark of the respect and attachment of his 

obliged and obedient servant, 

* " The Author." 
' "June 7th, 1805. 



HIS BIOGRAPHY OF WASHINGTON. 211 

now fills, with acknowledged ability, the office of first 
judicial magistrate of our nation. If he succeeds as an 
author and historian, it can only be from that variety 
of excellence which belongs to minds of the highest- 
order. . . . Seldom, if ever, has any book gone into 
the world under the circumstances which mark the 
appearance of Mr. Marshall's. He cannot be entirely 
regarded as the voluntary author of it. The Abbe Bar- 
thelimie spent thirty years in writing the travels of 
Anacharsis; and the historian of The Decline and 
Fall of the Roman Empire employed the labor of a life 
upon his work. But the biographer of the Life of 
Washington tells us, " that the public were already 
looking for his work before the writer was fixed on, 
or the documents from which it was to be composed, 
placed in his hands." Since the writer was fixed on, 
and the materials furnished, not three years have 
elapsed, and four octavo volumes are prepared for the 
press. It must be added, that, during this very short 
period, the labors of the author have been mixed with 
a regular attention to the duties of an office of the 
highest importance and difficulty. 

* Under this great disadvantage has the first volume 
of the Life of Washington been placed in our hands, 
and yet we hope there will not be that disappointment 
the author has anticipated. Whoever expects to see, 
in a work thus rapidly written, every sentence highly 
polished, who looks in every page for the splendid 
ornament of Gibbon, or the continued elegance of 
Hume, may not have his expectations answered ; but 
it has, nevertheless, conspicuous merit. The style is 
chaste, energetic, and elevated. A narrative interest- 
ing, because it is our own history, but deficient in 
striking incident, is conducted with ease and perspi- 
cuity, and every proof afibrded of a mind vigorous, 



212 LIFE OF JOHN MARSHALL. 

comprehensive, and discriminating. We highly ap- 
plaud Mr. Marshall's plan of presenting, under one 
view, the history of the first settlement and early pro- 
gress of the different colonies. It is a proper introduc- 
tion to his work, and forms a valuable accession to 
American literature. In the latter part of the volume, 
where events of a higher interest are described than 
those on which the earlier pages of it are occupied, we 
mark in Mr. Marshall's style a corresponding eleva- 
tion.' ' 

Major Jackson's criticism, unhappily, did not speak 
the public voice. The first volume of the work occa- 
sioned general disappointment. Neither in matter nor 
manner did it meet the public expectations. It con- 
tained nothing new, and the style was not more 
attractive than the annals and histories from which it 
was compiled. The critics exposed its infelicities of 
expression, and everybody pronounced it dull. It cer- 
tainly, for a time, detracted from Marshall's reputa- 
tion for ability. Nevertheless, there are passages in 
that volume which indicate talents for historical compo- 
sition, of no common order. His portraiture of Pitt 
may be cited as an example : — 

* Mr. Pitt,' he says, * had long been distinguished in 
the House of Commons for the boldness and splendor 
of his eloquence. His parliamentary talents, and the 
independent grandeur of his character, had given him 
a vast ascendency in that body, and had made him the 
idol of the nation. In 1756 he had been introduced 
into the councils of his sovereign ; but dissenting essen- 
tially from the system adopted for the prosecution of 

' Political and Commercial Register, July 9th, 1804. 



HIS BIOGRAPHY OF WASHINGTON. 213 

the war, he retained his station for a very short time. 
The public affection followed him out of office, and the 
national disasters continuing, it was found impractica 
ble to conduct the complicated machine of government 
without his aid. In the summer of 1757, an Adminis- 
tration was formed so as to conciliate the great con- 
tending interests in Parliament, and Mr. Pitt was 
placed at its head. The controlling superiority of his 
character gave him, in the Cabinet, the same ascend- 
ency which he had obtained in the House of Commons, 
and he seemed to dictate the measures of the nation. 
But a very short time was necessary to show that, in 
this extraordinary man, were combined qualities sel- 
dom united in the same person. His talents for action 
seemed even to eclipse those he had displayed in de- 
bate ; and in directing the vast and complicated move- 
ments of a war, extending on both elements over every 
quarter of the world, he unfolded a vigor of mind, a 
clearness of judgment, and a decision of character, sur- 
passing the expectations even of those who had been 
long accustomed to admire the firmness with which he 
had pursued his political course. His plans, partaking 
of the proud elevation of his own mind, and the exalted 
opinion he entertained of his countrymen, were always 
grand; and the means he employed for their execution 
never failed to be adequate to the object. Possessing 
without limitation the public confidence, he com- 
manded all the resources of the nation, and drew libe- 
rally from the public purse ; but the money was, at 
all times, faithfully and judiciously applied in the pub- 
lic service. Too great in his spirit, too sublime in his 
views, to become the instrument of faction, when 
placed at the head of the nation, he regarded only the 
interest of the nation, and overlooking the country, or 
the party which had given birth to merit, he searched 



214 LIFE OF JOHN MARSHALL. 

for merit only, and emplojed it wherever it could be 
found. From the elevation of the house of Brunswick 
to the British throne, a very considerable portion of 
the people, under the denomination of tories, had been 
degraded, persecuted, and oppressed. Superior to this 
narrow and short-sighted policy, Mr. Pitt sought to 
level these enfeebling and irritating distinctions, and 
to engage every British subject in the cause of his 
country. Thus, equally commanding the strength and 
the wealth of the kingdom, with perhaps greater 
talents, he possessed certainly greater means than any 
of his predecessors.' 

Marshall felt very keenly the strictures of the press. 
* I wish very sincerely,' he writes Wayne, ^ that some 
of those objections which are now made to the plan of 
the work had been heard when the proposals for sub- 
scription were first published. I should very readily 
\iave relinquished my opinion respecting it, if I had 
perceived that the public taste required a different 
course. I ought, indeed, to have foreseen that the 
same impatience which precipitated the publication 
would require that the life and transactions of Wash- 
ington should be immediately entered upon ; and, if 
my original ideas of the subject had been preserved in 
the main, yet I ought to have departed from them, so 
far as to have composed the introductory volume at 
leisure, after the principal work was finished. 

' I have also to sustain increased mortification on 
account of the careless manner in which the work has 
been executed. I had to learn that, under the pres- 
sure of constant application, the spring of the mind 
loses its elasticity, and that the style will be insensibly 



HIS BIOGRAPHY OF WASHINGTON. 215 

influenced by that of the authors we have been 
perusing. That compositions thus formed require con- 
stant revisals when the impression under which they 
were written has worn olf. But regrets for the past 
are unavailing. It is of more service to do what is 
best under existing circumstances. There will be 
great difficulty in retrieving the reputation of the first 
volume, because there is a minuteness and a want of 
interest in details of the transactions of infant settle- 
ments, which will always affect the book containing 
them, however it may be executed. I have, therefore, 
some doubts whether it may not be as well to drop the 
first volume for the present, that is, not to speak of a 
republication of it, and to proceed with the others. I 
shall, at all events, conform to your request, and be 
silent respecting the corrections I have prepared.'' 

On receiving a printed copy of the second volume, 
the Chief Justice wrote the publisher as follows : — 

'I have been critically examining the second volume 
since my return, and am sorry to find that, especially 
in the first chapter, there is much to correct. The 
third I hope will not be so defective, and it shall be 
my care to render the fourth more fit for the public 
eye. I wish it was possible for me to receive the 

proof-sheets. But I suppose it is not Should 

there be a second edition, the volumes will all be re- 
duced within the compass you propose, and will, of 
course, receive very material corrections. On this sub- 
ject, however, I remain silent. Perhaps a free expres- 
sion of my thoughts respecting the inaccuracies of 
the present edition may add to the current which 

' MS. Letter to Wayne, September 3d, 1804. 



216 LIFE OF JOHN MARSHALL. 

seems to set against it, and may, therefore, be for the 
present indiscreet. . . . The first edition should be 
completely in possession of the public before a second 
is spoken of.'* 

The three first volumes of the work were published 
in the course of the year 1804, the fourth in the en- 
suing year,'^ and the fifth in 1807. This latter volume, 
relating to Washington's administration of the Govern 
ment, was a work of great labor. 

* The unavoidable delays,' he says, ' the immense 
researches among volumes of manuscripts, and chests 
of letters and gazettes, which I am compelled to make, 
will impede my progress so much, that it is absolutely 
impossible to get the residue of the work completed in 
the short time which remains to be devoted to it. I 
regret this at least as much as you do, but cannot pre- 
vent it. I hope you will be able to employ yourself 
profitably on some other work until the succeeding 
volume shall be ready for you, which will be, I hope, 
next spring, as I shall apply to it again the instant I 
return from the Supreme Court. I flatter myself the 
numbers of the first edition will not be multiplied. I 
would not be understood to think humbly of it as re- 

' MS., September 8th, 1804. 

* *1 believe,' he writes, Hhe fourth volume to be much less inac- 
curate than those which preceded it, as I have bestowed much more 
attention on the style than was given to them. Yet 1 cannot flatter 
myself that it will not need a considerable reform. I am confident 
that I shall perceive, when 1 read it in print, many defects that escape 
me in manuscript. I should, therefore, wish it were possible to see 
the proof-sheets, or to correct a copy as I have done the three first, 
before the additional number of copies shall be printed. But if this 
would occasion you additional expense, I would not wish it.' MS 
Letter to Wayne, February 27th, 1805. 



HIS BIOGRAPHY OF WASHINGTON. 217 

vised. I have not read more than one hundred pages 
of the revised copy ; but I am persuaded that, had the 
whole work come out originally in that form, it would 
have been better received. Yet the revisal given to 
the first impression was not only hasty, but pursued 
so unremittingly, that many inaccuracies, and still 
more inelegancies, must have escaped me. For the 
sake of giving to the world a more careful correction 
of the work, and for the sake of some essential altera- 
tions which I contemplate, I wish a second edition ; 
and I am confident that every volume added to the 
first must tend to prevent any demand for a second 
edition.' ^ 

The anxious wish of the Chief Justice, that there 
should be a revised and improved edition of the Life 
of Washington, was not gratified. A second edition of 
the original work was never called for. He prepared, 

' MS. Letter to Wayne, October 5th, 1805. At the date of thia 
letter, he was just recovering from a bilious fever. Two weeks later, 
October 19th, 1805, he wrote as follows : — * Immediately after writinc^ 
to you, my fever returned, and I am not yet recovered. My ill-health 
is not more unwelcome on its own account, than on account of the 
additional delays it will create in the business in which I am en- 
gaged. That these delays should affect you in any degree I sincerely 
lament. They are occasioned by several accidents which concur, with 
the nature of the work (which requires researches beyond measure 
laborious), to protract the time of its completion. But you may be 
assured that your interest is still more concerned in having time 
taken to digest the materials properly, than in the celerity with which 
they are thrown together. Be this as it may, my health has com- 
pelled me to take refuge in the mountains from the sultry heats of our 
climate ; and the continuing fever under which I have labored since 
my return, and which is only stopped to-day, and still threatens me 
with a visit, admonishes me that my return was premature, and has 
prevented my deriving, from the time I counted on employing in this 
important business, the benefits I expected.' 



218 LIFE OF JOHN MARSHALL. 

however, an abridged edition, which preserved all the 
essential information of the larger work, without its 
prolixity, and proved much more acceptable to the 
public. It was published in two volumes, in 1831.* 
He also prepared an edition of the latter for the use 
of schools, which, however, did not make its appear- 
ance until after his death. The candor that pervades 
these productions has been remarked as among their 
characteristic excellences. Jefferson, it is true, took 
exception to the note in the fifth volume of the origi- 
nal work, respecting his letter to Mazzei. That letter, 
written in April, 1796, was published at Florence, and 
afterwards at Paris, in the Moniteur. It attributed 
monarchical designs to the leaders of the Federal 
party, and asserted that they wished to introduce into 
the United States the substance, as they had already 
done the forms,^ of the British Government. The 
editor of the Moniteur accompanied the letter with 
very severe strictures on the conduct of the United 
States, and it was supposed that our difficulties with 
France were complicated in consequence of it. In a 
letter to Martin Van Buren, in 1824, Jefferson, after 
declaring that an entire paragraph had been interpo 
lated into his letter to Mazzei, (and, as he surmised, 
by the persons in power at Paris,) by which he was 
made to charge his own country with ingratitude and 
injustice to France, proceeds to say, * And even Judge 
Marshall makes history descend from its dignity, and 
the ermine from its sanctity, to exaggerate, to record, 
and to sanction this forgery.'^ 

' The introductory part of the work had been previously published 
as a distinct work, called the ' History of the Colonies.' 

' It was printed * form' in the foreign papers ; but Jefferson sayg 
he wrote ' forms,' referring to the President's levees, birth-days, &c. 

* Jefferson's Works, vol. vii., p. 366. It is curious that JeffersoDj 



HIS BIOGRAPHY OF WASHINGTON. 219 

In the abridged edition of his work, the Chief Jus- 
tice replies to this charge of Mr. Jefferson, and vindi- 
cates himself with irresistible cogency.^ This, we be- 
lieve, is the only instance in which he was called upon 
to assert his candor and impartiality. 

We have seen how unfavorable were the circum- 
stances under which the Life of Washington was writ- 
ten and submitted to the public eye. It, nevertheless 
possesses great and undeniable merit. It is full, im 
partial, and accurate. It has always ranked as a 
standard authority. It is, however, the work of a 
jurist, and not of an artist. The style is something 
jejune. It lacks spirit, picturesqueness, and warmth 
of coloring. It has nothing of ' the long-resounding 
march, and energy divine ;' nothing of the glow, the 
ardentia verba, that distinguish the more celebrated 
productions of Chief Justice Jay. At the same time, 
as we have before remarked, the work evinces talents 
for literary labor, which, with a more exclusive devo- 
tion to that object, would have joined to the praise of 
solid merit the attractions of grace and elegance. His 
delineation of the person and character of Washington 
may serve as an illustration of this latter observation. 

* General Washington,' he says, ^was rather above 
the common size, his frame was robust, and his consti- 
tution vigorous, capable of enduring great fatigue, and 
requiring a considerable degree of exercise for the pre- 
servation of his health. His exterior created in the 

ia u letter to Mr. Madison, just after the publication of the Mazzei 
letter in this country, while giving very politic reasons for not pub- 
licly noticing it, does not insinuate that the paragraph in question 
was an interpolation ; but admits that the letter, in substance, wa^j 
his. Vide Letter to James Madison, August, 1797. 
' His reply is contained in a note. 



220 LIFE OF JOHN MARSHALL. 

beholder the idea of strength united with manly grace- 
fulness. His manners were rather reserved than free, 
though they partook nothing of that dryness and 
sternness which accompany reserve when carried to 
an extreme ; and, on all proper occasions, he could 
relax sufficiently to show how highly he was gratified 
by the charms of conversation, and the pleasures of 
society. His person and whole deportment exhibited 
an unaffected and indescribable dignity, unmingled 
with haughtiness, of which all who approached him 
were sensible ; and the attachment of those who pos- 
sessed his friendship, and enjoyed his intimacy, was 
ardent, but always respectful. His temper was hu- 
mane, benevolent, and conciliatory; but there was a 
quickness in his sensibility to anything apparently 
offensive, which experience had taught him to watch 
and to correct. . . . He made no pretensions to that 
vivacity which fascinates, or to tliat wit which dazzles, 
and frequently imposes on the understanding. More 
solid than brilliant, judgment rather than genius con- 
stituted the most prominent feature of his character. 

'As a military man, he was brave, enterprizing, 
and cautious. That malignity which has sought to 
strip him of all the higher qualities of a general, has 
conceded to him personal courage, and a firmness of 
resolution which neither dangers nor difficulties could 
shake. But candor will allow him other great and 
valuable endowments. If his military course does not 
abound with splendid achievements, it exhibits a series 
of judicious measures, adapted to circumstances, which 
probably saved his country. . . . 

' No man has ever appeared upon the theatre of 
public action, whose integrity was more incorruptible, 
or whose principles were more perfectly free from the 
contamination of those selfish and unworthy passions 



HIS BIOGRAPHY OF WASHINGTON. 221 

which find their nourishment in the conflicts of party. 
Having no views which required conceahnent, his real 
and avowed motives were the same ; and his whole 
correspondence does not furnish a single case, from 
which even an enemy would infer that he was capable, 
under any circumstances, of stooping to the employ- 
ment of duplicity. No truth can be uttered with more 
confidence, than that his ends were always upright, 
and his means always pure. He exhibited the rare 
example of a politician, to whom wiles were absolutely 
unknown, and whose professions to foreign govern- 
ments, and to his own countrymen, were always sin- 
cere. In him was fully exemplified the real distinc- 
tion which forever exists between wisdom and cun- 
umg, and the importance as well as truth of the 
maxim, that 'honesty is the best policy/ 



CHAPTER XIII. 

1829. 
VIRGINIA STATE CONVENTlOiH. 

The original Constitution of Virginia was formed in 
1776. It continued in existence for more than half a 
century; but, at the session of the Virginia Legisla- 
ture, in 1827-8, the question was submitted to the 
people of the State whether a convention should be 
called to revise it. It was carried in the affirmative. 
The subject was viewed throughout the State with 
absorbing interest. A party, powerful in wealth, 
talents, and social position, were invincibly opposed to 
any important innovation in the fundamental law. 
Another, and more numerous party, wi\h. champions 
of acknowledged character and abilities, were, in some 
essential particulars, for laying the Jixe at the root of 
the tree. They would extend the right of suffrage, 
readjust the basis of representation, reform the judi- 
ciary, and make other and important changes. The 
discussion of these opposing sentiments produced great 
excitement throughout Virginia. Both parties natu- 
rally selected their ablest advocates to represent them 
in the Convention. The result was, that a body of 
men were brought together, scarcely inferior to the re- 
nowned Convention of 1788. 

Chief Justice Marshall was elected a member, as 
were also the ex-Presidents Madison and Monroe. The 

222 



VIRGINIA STATE CONVENTION. 223 

Convention assembled at the Capitol, in Richmond, 
October 5th, 1829. A gentleman, who attended their 
debates a fortnight, has given a very graphic descrip- 
tion of several of the more eminent members. ' Mr. 
Madison,' he says, ^ sat on the left of the Speaker, Mr. 
Monroe on the right. ^ Mr. Madison spoke once for half 
an hour; but, although a pin might have been heard 
to drop, so low was his tone, that from the gallery I 
could distinguish only one word, and that was, " Con- 
stitution." He stood not more than six feet from the 
Speaker. When he rose, a great part of the members 
left their seats, and clustered around the aged states- 
man, thick as a swarm of bees. Mr. Madison was a 
small man, of ample forehead, and some obliquity of 
vision, (I thought the effect probably of age,) his eyes 
appearing to be slightly introverted. His dress was 
plain ; his overcoat a faded brown surtout. Mr. Mon- 
roe was very wrinkled and weather-beaten ; ungrace- 
ful in attitude and gesture, and his speeches only com- 
mon-place. Mr. Giles wore a crutch — was then Gov- 
ernor of the State. His style of delivery was perfectly 
conversational — no gesture, no effort ; but in ease, 
fluency, and tact, surely he had not there his equal; 
his words were like honey pouring from an eastern 
rock. 

* Judge Marshall, whenever he spoke, which was sel- 
dom, and only for a short time, attracted great atten- 
tion. His appearance was revolutionary and patri- 
archal. Tall, in a long surtout of blue, with a face of 
genius, and an eye of fire, his mind possessed the rare 
faculty of condensation ; he distilled an argument 
down to its essence. There were two parties in the 

' Mr. Monroe was chosen President of the Convention ; bur,, ovsdng 
to his indisposition, the chair was chiefly occupied by Mr. Powell and 
P. P. Barbour. 



224 LIFE OF JOHN MARSHALL. 

House ; the Western, or radical, and the Eastern, or 
conservative. Judge Marshall proposed something in 
the nature of a compromise. 

* John Randolph was remarkably deliberate, distinct, 
and emphatic. He articulated excellently, and gave 
the happiest effect to all he said. His person was frail 
and uncommon; his face pale and withered; but his 
eye radiant as a diamond. He owed, perhaps, more 
to his manner than to his matter; and his mind was 
rather poetical than logical. Yet, in his own particu- 
lar vein, he was superior to any of his cotemporaries. 
Benjamin Watkins Leigh cut a distinguished figure in 
the Convention, as the leader of the lowland party. 
His diction is clear, correct, elegant, and might be 
safely committed to print just as spoken. Yet, high as 
he stands, he is not, perhaps, in the highest rank of 
speakers. He never lightens, never thunders ; he can 
charm, he can convince, but he can hardly overwhelm. 
Mr. Tazewell I never saw up but once, for a moment, 
on a point of order; a tall, fine-looking man. P. P. 
Barbour presided over the bod}^ with great dignity and 
ease.' ' 

The question which excited most feeling, both in the 
Convention and out of it; the question which threat- 
ened to produce the most fatal results, putting in 
jeopardy the union and integrity of the State, related 
to the basis of representation. The Western districts 
contended for an equal representation of the free white 
population ; the Eastern, or rather, as John Randolph 
said, 'the great slave-holding and tobacco-planting dis- 
tricts,' would found representation upon a combination 

' Howe's Virginia Historical Collections, page 313. This sketch 
of the Convention was originally printed in a newspaper, under the 
signature of C C. 



VIRGINIA STATE CONVENTION. 225 

of persons and property. The debate upon this sub- 
ject was conducted with great ability and earnestness, 
and extended through several weeks. 

Much irritation prevailed, and great apprehensions 
began to be entertained that the Convention would 
separate without adopting any plan to allay the divi- 
visions, and restore the tranquillity of the State. At 
this portentous moment, however, several propositions 
for a compromise were introduced. It was now that 
the Chief Justice rose, and addressed the Convention. 
His voice was feeble, and those who sat far off could 
not hear him. iVhenever, therefore, he spoke, ' the 
members would press towards him, and strain, with 
outstretched necks and eager ears, to catch his words.' ' 
His candor, and courtesy of manner, attracted and con- 
ciliated all parties. 

' No person in the House,' said he, ' can be more 
truly gratified than I am, at seeing the spirit that 
has been manifested here to-day; and it is my earnest 
wish that this spirit of conciliation may be acted upon 
in a fair, equal, and honest manner, adapted to the 
situation of the different parts of the Commonwealth 
which are to be affected. As to the general proposi- 
tions which have been offered, there is no essential dif- 
ference between them. That the Federal numbers 
and the plan of the white basis shall be blended toge- 
ther, so as to allow each an equal portion of power, 
seems very generally agreed to. The difference is, that 
one party applies these two principles separately, the 
one to the Senate, the other to the House of Dele- 
gates ; while the other party proposes to unite the two 
principles, and to carry them in their blended form 

j5 - Southern Literary Messenger, vol. ii., p. 188. 



226 LIFE OF JOHN MARSHALL. 

through the whole Legislature. One gentleman differs 
in the whole outline of his plan. He seems to imagine 
that we claim nothing of republican principles, when 
we claim a representation for property. Permit me to 
set him right. I do not say that I hope to satisfy him, 
or others, who say that republican government depends 
on adopting the naked principle of numbers, that we 
are right ; but I think I can satisfy him that we do 
entertain a different opinion. I think the soundest 
principles of republicanism do sanction some relation 
between representation and taxation. Certainly no 
opinion has received the sanction of wiser statesmen 
and patriots. I think the two ought to be connected. 
I think this was the principle of the Revolution; the 
ground on which the colonies were torn from the 
mother country, and made independent States. 

'I shall not, however, go into that discussion now. 
The House has already heard much said about it. I 
would observe, that this basis of representation is a 
matter so important to Virginia, that the subject was 
reviewed by every thinking individual before this Con- 
vention assembled. Several different plans were con- 
templated. The basis of white population alone ; the 
basis of free population alone ; a basis of population 
alone ; a basis compounded of taxation and white 
population (or, which is the same thing, a basis of 
Federal numbers) ; two other bases were also proposed, 
one referring to the total population of the State, the 
other to taxation alone. Now, of these various propo- 
sitions, the basis of white population, and the basis of 
taxation, alone are the two extremes. Between the 
free population, and the white population, there is 
almost no difference. Between the basis of total 
population and the basis of taxation, there is but little 
difference. The people of the East thought that they 



VIRGINIA STATE CONVENTION. 227 

offered a fair compromise, when they proposed the 
compound basis of population and taxation, or the 
basis of the Federal numbers. We thought that we 
had republican precedent for this — a precedent given 
us by the wisest and truest patriots that ever were 
assembled; but that is now past. We are now willing 
to meet on a new middle ground, beyond what we 
thought was a middle ground, and the extreme on the 
other' side. We considered the Federal numbers as 
middle ground, and we may, perhaps, now carry that 
proposition. The gentleman assumed too much when 
he said that question was decided. It cannot be con- 
sidered as decided, till it has come before the House. 
The majority is too small to calculate upon it as cer- 
tain in the final decision. We are all uncertain as to 
the issue. But all know this, that if either extreme 
is carried, it must leave a wound in the breast of the 
opposite party, which will fester and rankle, and pro- 
duce I know not what mischief. The majority, also, 
are now content once more to divide the ground, and 
to take a new middle ground. The only difficulty is, 
whether the compromise shall be affected by applying 
one principle to the House of Delegates, and the other 
to the Senate, or by mingling the two principles, and 
applying them in the same form to both branches of 
the Legislature? I incline to the latter opinion. I 
do not know, and have not heard, any sufficient rea- 
son assigned for adopting different principles in the 
two branches. Both are the Legislature of Virginia, 
and if they are to be organized on different principles, 
there will be just the same divisions between the two, 
as appears in this Convention. It can produce no 
good, and may, I fear, produce some mischief. It will 
be said, that one branch is the representation of one 
division of the State, and the other branch of another 



228 LIFE OF JOHN MARSHALL. 

division of it. Ought they not both to represent the 
whole? Yet 1 am ready to submit to such an arrange- 
ment, if it shall be the opinion of a majority of this 
House. If this Convention shall think it best that 
the House of Delegates shall be organized in one way, 
and the Senate in another, I shall not withhold my 
assent. Give me a Constitution that shall be received 
by the people ; a Constitution in which I can consider 
their different interests to be duly represented, and I 
will take it, though it may not be that which I most 
approve. . . . 

* The principle, then, which I propose as a compro- 
mise is, that the apportionment of representation shall 
be made according to an exact compound of the two 
principles, of the white basis and of the Federal num- 
bers, according to the census of 1820.' 

This ^ exact compound' would have given, as the 
basis of representation, the whole white population, 
and three-tenths of the colored, whether bond or free. 
After considerable discussion, the Chief Justice again 
addressed the Convention, and his speech, though 
short, ' was at the time regarded as an unrivalled 
specimen of lucid and conclusive reasoning.'* 

* Two propositions,' he said, ' respecting the basis of 
representation, have divided this Convention almost 
equally. One party has supported the basis of white 
population alone, the other has supported a basis com- 
pounded of white population and taxation ; or, which 
is the same thing in its results, the basis of Federal 
numbers. The question has been discussed, until dis- 
cussion has become useless. It has been argued, until 

' Southern Literary Messenger, vol. ii., p. 188. 



VIRGINIA STATE CONVENTION 229 

argument is exhausted. We have now met on the 
ground of compromise. . . . One party proposes that 
the House of Delegates shall be formed on the basis of 
white population exclusively, and the Senate on the 
mixed basis of white population and taxation, or on 
the Federal numbers. The other party proposes that 
the white population shall be combined with Federal 
numbers, and shall, mixed in equal proportions, form 
the basis of representation in both Houses. This last 
proposition must be equal. All feel it to be equal. 
If the two principles are combined exactly, and, thus 
combined, form the basis of both Houses, the compro- 
mise must be perfectly equal. . . . 

' After the warm language (to use the mildest 
phrase) which has been mingled with argument on 
both sides, I heard, with inexpressible satisfaction, 
propositions for compromise proposed by both parties, 
in the language of conciliation. I hail these auspicious 
appearances with as much joy as the inhabitant of the 
polar regions hails the reappearance of the sun after 
his long absence of six tedious months. Can these 
appearances prove fallacious ? Is it a meteor we have 
seen, and mistaken for that splendid luminary which 
dispenses light and gladness throughout creation ? It 
must be so, if we cannot meet on equal ground. If we 
cannot meet on the line that divides us equally, then 
take the hand of friendship, and make an equal com- 
promise ; it is vain to hope that any compromise can 
be made.* 

A gentleman from Augusta County, who had taken 
a prominent part in the debate, and certainly dis- 
played a good deal of ability, replied to the Chief Jus- 
tice. One of his friends pronounced his argument to 
be unanswerable. This called up John Randolph, 



230 LIFE OF JOHN MARSHALL. 

whose esteem and adrniration for Judge Marshall, we 
are told (though they differed widely on Federal poli 
tics) amounted almost to idolatry.* 

' The statement of the argument/ said he, ' by the 
gentleman from Richmond, the Chief Justice of the 
United States, had been such, as to put at defiance all 
that gentleman had said, or all that any man on earth 
could say. Where was the necessity of defending the 
fortress of Gibraltar against the abortive and puny 
attacks of the gentleman from Augusta ? The Chief 
Justice had put the argument on ground which never 
could be shaken ; and which had no more been im- 
pugned, than the fortress of Gibraltar could be affected, 
by attacking it with a pocket pistol. He had put it in a 
light — I do not mean any compliment — in which he 
puts everything that lie attempts to place in a clear 
light. He had shown that the weak and helpless gov- 
ernment proposed in the plan of the gentleman from 
Frederick was not what it was represented to be, and 
had shown them what was a compromise.' 

On the various questions relating to the Judiciary, 
the Chief Justice manifested great interest. He was 
particularly anxious to preserve the county court sys- 
tem ; a system, by the bye, which Mr. Jefferson re- 
garded with the utmost aversion. The justices of 
these courts, said the latter, ' are self-chosen, are for 
life, and perpetuate their own body in succession for- 
ever, so that a faction once possessing themselves of 
the Bench of a county, can never be broken up, but 
hold their county in chains forever indissoluble. Yet 
these justices are the real Executive, as well as Judi 

' Southern Literary Messenger, vol. ii., p. 188. 



VIRGINIA STATE CONVENTION. 231' 

ciary, in all our minor and most ordinary concerns. 
They tax us at will ; fill the office of sherifi* . . . 
name nearly all our military leaders, which leaders, 
once named, are removable but by themselves. The 
juries, our judges of all fact, and of law when they 
choose it, are not selected by the people, nor amenable 
to them. They are chosen by an officer named b}' 
the Court and Executive.'^ Judge Marshall, on the 
contrary, adverting to the practical operation of these 
courts, would preserve them, and preserve, too, the 
mode in which the justices were appointed. 

* I am not in the habit,' he said, ' of bestowing ex- 
travagant eulogies upon my countrymen ; I would 
rather hear them pronounced by others ; but it is a 
truth, that no State in the Union has hitherto enjoyed 
more complete internal quiet than Virginia. Tliere is 
no part of America, where less disquiet, and less of ill- 
feeling between man and man is to be found, than in 
this Commonwealth ; and I believe, most firmly, that 
this state of things is mainly to be ascribed to the 
practical operation of our county courts. The magis- 
trates who compose those courts consist, in general, of 
the best men in their respective counties. They act 
in the spirit of peace-makers, and allay, rather than 
excite, the small disputes and difierences which will 
sometimes arise among neighbors. It is certainly much 
owing to this, that so much harmony prevails amongst 
as. These courts must be preserved : if we part with 
them, can we be sure that we shall retain among our 
justices of the peace the same respectability and weight 
of character as are now to be found ? I think not.' 

' Jefferson's Works. Letter to Samuel Kerchival, July 12th, 
i816. 



232 LIFE OF J H K 51 A R S H A L L . 

John Randolph declared that he had long considered 
the county court system as one of the main pillars 'in 
the an( ient edifice of our State Constitution.' In the 
course of the discussion upon this subject, Hhe Chief 
Justice, thinking that some remark of his had been 
understood by Mr. Randolph as personally unkind, 
arose with earnestness to assure him it was not so in- 
tended. Mr. R. as earnestly strove to quiet Judge 
M.'s uneasiness, by assuring him that he had not un- 
derstood the remark as offensive. In their eagerness, 
the one to apologize, and the other to shov/ that no 
apology was necessary, they interrupted each other 
two or three times : at length Mr. R. effectually 
silenced his friend by saying, '•' I know the goodness 
of iiis heart too well to have supposed it possible that 
he could have intended to give me pain. Sir, I be- 
lieve that, like My Uncle Toby, lie ivould not even 
hurt a fly r'' 

One clause of the proposed Constitution provided 
that no modification or abolition of any court should 
be construed to deprive any judge thereof of his office; 
but such judge should perform any judicial duties 
which the Legislature might assign him. It met with 
great opposition ; but was supported with equal ear- 
nestness by Judge Marshall. He contended that the 
independence of the judges was absolutely essential. 
* I have grown old in the opinion,' said he, ' that there 
is nothing more dear to Virginia, or ought to be dearer 
to her statesmen, and that the best interests of our 
country are secured by it. Advert, Sir, to the duties 
of a judge. He has to pass between the Government 
and the man whom that Government is prosecuting • 

' Southern Literary Messenger, vol. ii., p. 188. 



VIRGINIA STATE CONVENTION. 233 

between the most powerful individual in the commu- 
nity, and the poorest and most unpopular. It is of the 
last importance that, in the exercise of these duties, 
he should observe the utmost fairness. Need I press 
the necessity of this? Does not every man feel that 
his own personal security, and the security of his pro- 
perty, depends on that fairness ? The judicial depart- 
ment comes home, in its effects, to every man's fire- 
side : it passes on his property, his reputation, his life, 
his all. Is it not, to the last degree, important, that 
he should be rendered perfectly and completely inde- 
pendent, with nothing to influence or control him but 
God and his conscience?' ' We have heard about sine- 
cures and judicial pensioners. Sir, the weight of such 
terms is well known here. To avoid creating a sine- 
cure, you take away a man's duties, when he wishes 
them to remain ; you take away the duty of one man, 
and give it to another : and this is a sinecure. What 
is this, in substance, but saying, that there is no such 
thing as judicial independence? You may take a 
judge's duties awaj', and then discard him. What is 
this but saying, that there is, and can be, and ought 
to be, no such thing as judicial independence?' 'I 
have always thought, from my earliest youth till now, 
that the greatest scourge an angry Heaven ever in- 
flicted upon an ungrateful and a sinning people, was 
an ignorant, a corrupt, or a dependent judiciary. Will 
you draw down this curse upon Virginia ? Our ances- 
tors thought so ; we thought so till very lately ; and 
I trust the vote of this day will show that we think 
so still.' 

Judge Marshall objected to that clause of the pro- 
posed Constitution which inhibited the Senate from 
altering a money bill, and confined their action simply 



234 LIFE OF JOHN MARSHALL. 

to its approval or rejection. ' He never could con- 
ceive,' he said, ' the reason in favor of this part of the 
old Constitution. It had always appeared to him to 
have been introduced into it, from an assimilation of 
the Senate to the House of Lords. . . . But nothing 
could be more dissimilar than our Senate and the 
House of Lords, which was a paramount body, heredi- 
tary in its structure, sitting in its own right, and natu- 
rally apt to be much under the influence of the 
Crown.' 'But there was nothing of this sort in Vir- 
ginia. The members of the Senate were as much the 
representatives of the people as those of the House of 
Delegates. They were elected in the same manner, 
by the same persons, and they receive the same pay 
as members of the other House.' On his motion, the 
clause was struck out. 

Among the noticeable votes of the Chief Justice was 
one against empowering the Legislature to declare, by 
law, the disqualification of any person to hold oftice 
under the Government of Virginia, who should fight a 
duel, or send or accept a challenge, or act as second to 
either party, or knowingly be the bearer of a chal- 
lenge.' As he did not explain the reasons that in- 

' This provision was incorporated into the Constitution by a large 
majority ; by a vote of more than two-thirds of the members in its 
fevor. As Virginia, in the previous Presidential election, had voted 
for General Jackson, who had been engaged in several duels and 
rencontres, it gave John Randolph an opportunity to make one of 
his characteristic retorts. ' You will vote for a man,' said he, <■ who 
has fought a duel, for President of the United States, and then you 
come back here, and gravely declare that no such man shall be a 
member of that august and illustrious assembly, the House of Bur- 
gesses ! Sir, it is over-shooting the mark. . . It is a sanctimonious 
sort of republicanism not to my taste, not at all.' 



VIRGINIA STATE CONVENTION. 235 

duced him to give this vote, it may be idle to conjee* 
ture them. We are persuaded, however, that he ^r3s 
favorable to the object sought to be attained, that is, 
the suppression of duelling; and only objected to the 
means employed to effect it. He might object to 
giving the Legislature a power of disfranchisement. 
A general power of that kind would be extremely 
dangerous, and such as no legislative body ought to 
be entrusted with. It might, in times of excitement, 
be exercised so as to disqualify an opposing party in 
politics, or an obnoxious sect in religion. The Chief 
Justice might be opposed to recognising a principle of 
that nature, however modified or restricted it might 
be, lest in the future an enlarged application of it 
should be demanded. 

The respect and affection with which all parties in 
the Convention regarded him was very marked and 
observable. Any dissent from his opinions was almost 
invariably accompanied by some expression of venera- 
tion for his character, or attachment to his person. 
Indeed, it was said that there was some little inconsis- 
tency on the part of certain members, between their 
warm professions of respect for his wisdom and grati- 
tude for his spirit of conciliation, and their votes, 
which by no means conformed to his. ' Up gets the 
gentleman from Loudon,' said B. Watkins Leigh, when 
discussing the question as to the basis of representa- 
tion, 'and thanks his honored, and venerable, and 
venerated friend from Richmond (Judge Marshall), for 
saying that he will vote for their proposition ; and im- 
mediately after, another gentleman from Loudon made 
an occasion to say that his highly venerated friend 
was his political father — that he took delight in fol- 
lowing his lessons — and that it was gratifying to his 
heart to find, that his very venerable friend from Rich- 



236 LIFE OF JOHN MARSHALL. 

inond was willing to take what they proposed to give, 
if he could not get what he preferred. But, Sir, have 
we heard one word like a purpose to meet the gene- 
rous spirit of that gentleman with a like generous 
spirit ? Any, the least intimation, that if their propo- 
sition failed, they would accede to his? Not one 
word. . . . The generous and affectionate disposition 
of the gentleman from Richmond they applaud and 
countenance; but they — they will yield nothing! 
They were called upon to stand firm, and firm they 
stand.' 

The Constitution finally adopted by the Convention 
was the result of mutual concession and compromise. 
Many of its features, considered separately, the Chief 
Justice could not approve. We have seen what 
opinions he entertained with regard to the question of 
suffrage, the basis of representation, and the inde- 
pendence of the Judiciary. His politics were conserv- 
ative ; but he was too wise not to know that it is an 
eternal law of political society, that concession and 
compromise are essential to its existence. ^ All gov- 
ernment, indeed every human benefit and enjoyment, 
every virtue, and every prudent act, is founded on 
compromise and barter. We balance inconveniences ; 
we give and take; we remit some rights, that we may 
enjoy others; and we choose rather to be happy citi- 
zens, than subtle disputants.'' On these principles, 
the Chief Justice gave his cordial assent to the Consti- 
tution of Virginia, though, in several of its provisions, 
it ran counter to his opinions. 

He was now in the seventy-fifth year of his age, 
and, apart from his duties as Chief Justice, ho did not 

' Burke. Speech on Conciliation with America 



VIRrilNIA. STATE CONVENTION. 237 

again mingle in public life. Indeed, with the excep- 
tion of this Convention, and the Convention which 
assembled at Charlottesville in the previous year, to 
devise a system of internal improvements for the 
State, and of which he was a member, he had not done 
so since his accession to the Bench. 

In the following chapter we shall trace his footsteps 
through the brief, remaining period of his life, and 
view him more closely ob a man and a citizen. 



CHAPTER XIV. 

1829 — 1835. 
CONCLUSION. 

The residence of the Chief Justice in Richmond 
was built by himself, and situated on Shockhoe Hill.' 

' 'Among the oldest and most respectable of the occupants of Shock- 
hoe Hill was the Ambler family, of which the Treasurer, Jaquelin 
Ambler was the head. His own residence yet stands, between Mar- 
shall and Clay streets, and is occupied by one of his sons-in-law. His 
daughters were married to gentlemen who built their dwellings not 
far from the paternal mansion, and a distinguished circle they 
formed. 

'^ Chief Justice (then General) 3farshall is entitled to priority. His 
residence yet stands on the street named in his honor, but the 
grounds have been reduced one-half, and a number of fine dwellings 
erected on them, between Eighth and Ninth streets. 

' Col. Edward Carrington, also a soldier of the Revolution, married 
another of the Misses Ambler, a most excellent lady, as was each of 
her sisters. He was a member of the old Congress in 1785-6. The 
high estimation in which Col. Carrington was held by his personal 
friend. General Washington, is shown by his selection of him to be 
Quarter-Master General, when, in 1798, war with France was ex- 
pected, and an organization of officers formed for the crisis. Under 
John Adams's Administration, Col. Carrington held the office of 
Commissioner of the Revenue of the United States for Virginia — 
direct taxes being then resorted to, in consequence of the depreda- 
tions on our commerce. . . . Col. Carrington was a man of dignified 
deportment, which was well sustained by his tall and massive figure. 
He was a pure patriot, and pure in all the relations of life. He died 
October 28th, 1810, aged 61. 
238 



CONCLUSION. 239 

Though without the slightest architectural pretensions, 
it was commodious, and the grounds were ample.' No 
man was more attached to his home, and his judicial 
labors were so distributed, that he was enabled to 
spend the most of each year in the midst of his family. 
The session of the Supreme Court at Washington, and 
the Circuit Courts for Virginia and North Carolina, 
completed the annual round of his judicial duties. 

Having considerable leisure, and being fond of agri- 
culture, he purchased a farm three or four miles from 
Richmond, which he visited frequently, often on foot. 
He also owned a farm in Fauquier, his native county, 
to which he made an annual visit. His family and 
social attachments were warm and constant, and his 
periodical visits to Fauquier were always highly en- 
joyed both by himself and his numerous relatives and 
friends. 

He took great delight in social, and even convivial 
pleasures. He was a member of The Barbacue, or 
Quoit Club, at Richmond, for more than forty years ; 
and no one participated in the exercise and recreation 
that took place at their meetings with more zest and 
enthusiasm than himself. The Club was formed in 
1788, and consisted of thirty members. They met once 
a fortnight, from May until October, at a place near 
'Buchanan's Spring,' about a mile from the town. A 

'Daniel Call, a distinguished lawyer, married another of the sis- 
ters Ambler, and his residence on the square between the Capitol and 
Broad street was taken down a few years ago, to be substituted by 
Mr. Valentine's large store. 

' George Fisher married a fourth sister, and he, a retired merchant, 
and one of our oldest citizens, is the survivor of all that I have men- 
tioned, and is the occupant of the patriarchal mansion of Treasurer 
Ambler.' — Richmond in By-gone Days, p. 64 et seq. 

' About two acres. 



240 LIFE OF JOHN MARSHALL. 

visitor, who was present at a meeting of the Club, in 
the life-time of the Chief Justice, has given the follow- 
ing account of it: — 

' The Club consists/ he says, ' of judges, lawyers, 
doctors, and merchants, and the Governor of the Com- 
monwealth has a general invitation when he enters 
into office. What gave additional interest to this 
body, some years ago, was the constant attendance (as 
honorary members) of two venerable clergymen — one 
of the Episcopal, and the other of the Presbyterian 
Church — who joined in the innocent pastime of the 
day. They were pious and exemplary men, who dis- 
cerned no sin in harmless gaiety. Quoits aYid back- 
gammon are the only games indulged in, and one of 
the clergyman was, for many years, "cock of the 
walk' in throwing the discus. They are gone to their 
account, and have left a chasm that has not been 
filled.^ 

' Some years ago an amendment was made to the 
constitution, which admits the use of porter. Great 
opposition was made to this innovation, and the de- 
struction of the Club was predicted as the consequence. 
The oppositionists, however, soon became as great con- 
sumers of malt and hops as their associates ; and now 
they even consent to the introduction of wine at the 
last meeting of every year, provided there be " a shot 
in the locker." The members each advance ten dol- 

' One of these clergymen was the Rev. Mr. Buchanan, an Episco- 
palian, and the other the Rev. Mr. Blair, a Presbyterian. 'These 
twc clergymen were beloved throughout the community, for their 
many virtues. They were not ascetics, but liked to see their flocks 
gay and happy, and to promote and partake of such feelings within 
proper bounds. Each possessed a fund of wit, and was liberal in ex- 
pending it.' — Richmond in By-gone Days, p. 120. 



CONCLUSION. 241 

lars to the treasurer at the beginning of the season, 
and every member is entitled to invite any strangers 
as guests, on paying into the general fund one dollar 
for each ; while the caterers of the day, consisting of 
two members in rotation, provide, and have the privi- 
lege of bringing each a guest (either citizen or non 
resident) at free cost. 

' On the day I was present, dinner was ready at 
half-past three o'clock, and consisted of excellent meats 
and fish, well-prepared and well-served, with the vege- 
tables of the season. Your veritable gourmand never 
fails to regale himself on his favorite harbecue, which 
is a fine fat pig, called "shoot," cooked on the coals, 
and highly-seasoned with cayenne; a dessert of melons 
and fruits follows, and punch, porter, and toddy, are 
the table liquors ; but with the fruits comes on the 
favorite beverage of the Virginians, mint julep, in 
place of wine. I never witnessed more festivity and 
good humor than prevail at this Club. By the consti- 
tution, the subject of politics is forbidden, and each 
man strives to make the time pleasant to his com- 
panions. The members think they can offer no higher 
compliment to a distinguished stranger, than to intro- 
duce him to the Club; and all feel it a duty to contri- 
bute to his entertainment. It was refreshins: to see 

o 

such a man as Chief Justice Marshall laying aside the 
reserve of his dignified station, and contending with 
the young men at a game of quoits, with all the emu- 
lation of a youth. 

' Many anecdotes are told of occurrences at these 
meetings. Such is the partiality for the Chief Justice, 
that it is said the greatest anxiety is felt for his suc- 
cess in the game by the bystanders ; and, on one occa- 
sion, an old Scotch gentleman was called on to decide 
between his quoit and that of another member, who, 

16 



242 LIFE OF JOHN MARSHALL. 

after seemiiigl}' careful measurement, announced, "J/^»- 
ier Mareshall has it a leattle" when it was visible to all 
that the contrary was the fact. A French gentleman 
(Baron Quenet) was at one time a guest, when the 
Governor, the Chief Justice, and several of the Judges 
of the High Court of Appeals, were engaged with 
others, with coats off, in a well-contested game. He 
asked, " if it was possible that the dignitaries of the 
land could thus intermix with private citizens ;" and, 
when assured of the fact, he observed, with true galli- 
can enthusiasm, that "he had never before seen the 
real beauty of republicanism." ' ^ 

Not one of the members, it is stated, was more punc- 
tual in his attendance at the meetings of the Club, 
than the Chief Justice, and not one who contributed 
more to their pleasantness. Even in advanced years, 
he was ^ among the most skilful in throwing the dis- 
cus as he was in discussion, . . . and it delighted hia 
competitors as much as himself, to see him "ring the 
meg.'"^ ^ He would hurl his iron ring of two pounds 
weight, with rarely erring aim, fifty-five or sixty feet; 
and, at some chef dJoeuvre of skill in himself or his 
2)artner, would spring up and clap his hands, with all 
the light-hearted enthusiasm of boyhood.'^ In his 
yearly visits to Fauquier, ' where the proper imple- 
ments of his sport were not to be had, he still prac- 
tised it among his rustic friends, with Jlat stwies 
for quoits. A casual guest at a harhacue in that 
county — one of those rural entertainments so frequent 
among the country people of Virginia — soon after his 
arrival at the spot, saw an old man emerge from a 

' American Turf Register for 1829. 

• Richmond in By-gone Days, p. 189. 

' Southern Literary Messenger, vol. ii., p. 188 



CONCLUSION. 243 

thicket which bordered the neighboring brook, carry 
ing as large a pile of these flat stones as he could hold 
between his right arm and his chin : he stepped 
briskly up to the company, and threw down his load 
among them, exclaiming, " There ! Here are quoits 
enough us for all !" The stranger's surprise may be 
imagined, when he found that this plain and cheerful 
old man was the Chief Justice of the United States.' ' 
In all his actions, there was the same winning sim- 
plicity, the same forgetfulness of self; 'his native 
humility, modesty, and candor never forsook him, 
even on surprise or provocation ; nor was the least 
degree of assumption visible to the most scrutinizinc^ 
eye, in any part of his conduct or discourse.' ^ 

' He was a most conscientious man,' says Bishop 
Meade, ' in regard to some things which others might 
regard as too trivial to be observed. It was my privi- 
lege, more than once, to travel with him between Fau- 
quier and Fredericksburgh, when we were both going 
to the lower country. On one occasion, the roads 
being in their worst condition, when we came to that 
most miry part called the '' Black Jack," we found 
that the travellers through it had taken a nearer and 
better road through a plantation. The fence being 
down, or very low, I was proceeding to pass over, but 
he said we had better go round, although each step 
was a plunge, adding, that it was his duty, as one in 
office, to be very particular in regard to such things. 
As to some other matters, however, he was not so par- 
ticular. Although myself never much given to dress 
or equipage, yet I was not at all ashamed to compare 

' Southern Literary Messenger, vol. ii., p. 189. 

2 Burke of Sir Joshua Reynolds, and eminently true of Marshall. 



244 LIFE OF JOHN MARSHALL. 

with hiin during these travels, whether as to clothing, 
horse, saddle, or bridle. Servant he had none. Fede- 
ralist as he was in politics, in his manners and habits 
he was truly republican. Would that all republicans 
were like him in this respect. . . . On one of my visits 
to Richmond, being in a street near his house, between 
daybreak and sunrise one morning, I met him on 
horseback, with a bag of clover-seed lying before him, 
which he was carrying to his farm, it being the time 
of sowing such seed.' ' 

The dress of the Chief Justice was always plain, 
and worn very carelessly. He usually wore blue- 
mixed woollen stockings, and a suit of black, of rather 
ordinary quality. He adhered to the mode of the last 
century, but his body was so ill-compacted, that it 
balked and marred the utmost skill of the shears. He 
was an early riser; 'and nothing was more usual, than 
to see him returning from market at sunrise, with 
poultry in one hand, and a basket of vegetables in the 
other.' ^ It is related that, while at the market on one 
occasion, a young man, who had recently removed to 
Richmond, was swearing violently because he could 
hire no one to take home his turkey. Marshall 
stepped up, and, ascertaining of him where he lived, 
replied, ' That is in my way, and I will take it for 
you.' When arrived at his dwelling, the young man 
inquired, 'What shall I pay you?' 'Oh, nothing,' 
was the rejoinder, ' you are welcome ; it was on my 
way, and no trouble.' ' Who is that polite old gentle- 
man who brought home my turkey for me ?' inquired 
the other of a bystander, as Marshall stepped away. 

' Old Churches and Families of Virginia, vol. ii., p. 222. 
• Southern Literary Messenger, vol. ii., p. 188. 



CONCLUSION. 245 

* That; replied he, ' is John Marshall, Chief-Justice 

of the United States.' ^/ 

/ 

As we have already remarked, he held the Circuit 
Courts for Virginia and North Carolina, and nothing 
could present a greater contrast than the Lord Chan- 
cellor of England going in state to Westminster Hall, 
and the Chief Justice of the United States making his 
annual journey to Raleigh, in the latter State, to pre- 
side at the Federal Court held there. His style of 
travelling to and from that place, about 175 miles 
each way, '' was, for many years, in that primitive 
sort of vehicle, a stick gig (or chair, as it was then 
called), with one horse, and with no attendant.'^ 

His equipage, dress, and unpretending manner never 
would have suggested to a stranger the remotest idea 
of his position in life. He was once travelling in the 
northern part of Virginia, and about night-fall arrived 
at the village of Winchester, in Frederick County. He 
drove to what was then known as M'Guire's hotel. 
What occurred there has been thus related : — 



' It is not long since a gentleman was travelling in 
one of the counties of Virginia, and, about the close of 
the day, stopped at a public house to obtain refresh- 
ment, and spend the night. Pie had been there but a 
short time, before an old man alighted from his gig, 
with the apparent intention of becoming his fellow- 
guest at the same house. As the old man drove up, 
he observed that both the shafts of his gig were 

' Howe's Virginia Historical Collections, page 26Q. 
* Richmond in By-gone Days, p. 64. 



246 LIFE OF JOHN MARSHALL. 

broken, and that they were held together by withea 
formed from the bark of a hickory sapling. Our tra 
veller observed further, that he was plainly clad, that 
his knee-buckles were loosened, and that something 
like negligence pervaded his dress. Conceiving him 
to be one of the honest yeomanry of our land, the 
courtesies of strangers passed between them, and they 
entered the tavern. It was about the same time that 
an addition of three or four young gentlemen was 
made to their number — most, if not all of them, of 
the legal profession. As soon as they became conve- 
niently accommodated, the conversation was turned 
by the latter upon an eloquent harangue which had 
that day been displayed at the Bar. It was replied 
by the other, that he had witnessed, the same day, a 
degree of eloquence no doubt equal, but that it was 
from the pulpit. Something like a sarcastic rejoinder 
was made to the eloquence of the pulpit; and a warm 
ftiid able altercation ensued, in which the merits of 
the Christian religion became the subject of discus- 
sion. From six o'clock until eleven, the young cham- 
pions wielded the sword of argument, adducmg, with 
ingenuity and ability, everything that could be said 
pro and con. During this protracted period, the old 
gentleman listened with all the meekness and modesty 
of a child ; as if he was adding new information to the 
stores of his own mind ; or perhaps he was observing, 
with philosophic eye, the faculties of the youthful 
mind, and how new energies are evolved by repeated 
action ; or, perhaps, with patriotic emotion, he was 
reflecting upon the future destinies of his country, and 
on the rising generation upon whom these future des- 
tinies must devolve ; or, most probably, with a senti- 
ment of moral and religious feeling, he was cr>Ilecting 
an argument which — characteristic of himself — no 



CONCLUSION. 247 

art would be "able to elude, and no force resist." 
Our traveller remained a spectator, and took no part 
in what was said. 

' At last one of the young men, remarking that it 
was impossible to combat with long established pre- 
judices, wheeled around, and with some familiarity 
exclaimed, " Well, my old gentleman, what think you 
of these things ?" If, said the traveller, a streak of 
vivid lightning had at that moment crossed the room, 
their amazement could not have been greater than it 
was with what followed. The most eloquent and un- 
answerable appeal was made for nearly an hour, by 
the old gentleman, that he ever heard or read. So 
perfect was his recollection, that every argument 
urged against the Christian religion was met in the 
order in which it was advanced. Hume's sophistry 
on the subject of miracles was, if possible, more per- 
fectly answered than it had already been done by 
Campbell. And in the whole lecture there was so 
much simplicity and energy, pathos and sublimity, 
that not another word was uttered. An attempt to 
describe it, said the traveller, would be an attempt to 
paint the sunbeams. It was now a matter of curiosity 
and inquiry who the old gentleman was. The traveller 
concluded it was the preacher from whom the pulpit 
eloquence was heard; but no, it was the Chief Justice 
of the United States.'^ 

If a stranger might not infer Marshall's greatness 
from his personal appearance, he could not long be in 
his company without perceiving his goodness, his un- 

This anecdote was originally published in the Winchester Re- 
publican, but preserved in durable form by being printed in Howe's 
Virginia Historical Collections, p. 275. 



248 LIFE OF JOHN MARSHALL. 

affected kindness, and genial nature. ' Meet him in a 
stage-coach, as a stranger, and travel with him a whole 
day, and you would only be struck with his readiness 
to administer to the accommodations of others, and his 
anxiety to appropriate the least to himself. Be with 
him, the unknown guest at an inn, and he seemed 
adjusted to the very scene, partaking of the warm wel- 
come of its comforts, whenever found, and, if not found, 
resigning himself without complaint to its meanest 
arrangements. You would never suspect, in either 
case, that he was a great man ; far less, that he was 
the Chief Justice of the United States. But if, per- 
chance, invited by the occasion, you drew him into 
familiar conversation, you would never forget that you 
had seen and heard that " old man eloquent." ' ' 

He was fond of the young, and they found in him a 
cheerful and most agreeable companion. ' One, whose 
first recollection of him referred to his triumphal entry 
(for auch it was) into Richmond, on his return from 
France, and who, as a printer's boy, afterwards, for 
several years, was carrier of a newspaper to him, de. 
scribes him as "remarkably fond of boys' company—, 
always chatty — and always pleasant."^ The same 
printer's boy having been transferred to Washington, 
in 1800, while Marshall was Secretary of State, re- 
newed his acquaintance with him. ' Again,' he says, 
* did the pleasing office of serving him with the 
" Washington Federalist" devolve on me. He resided 
in a brick building hardly larger than most of the 
kitchens now in use. I found him still the same 
plain, unostentatious John Marshall: always accessi- 

' Story's Discourse, p. 52. 

* Southern Literary Messenger, vol. ii., p. 189. 



CONCLUSION. 249 

hie, and always with a sraile on his countenance when 
I handed him the "Federalist." His kindness of 
manner won my affections; and I became devotedly 
attached to him.' ' 

No man was more just or more generous. In his 
dealings he was so scrupulous, as always to pre- 
fer his own loss to the possibility of his wronging 
another.^ In his practice at the Bar, he never know- 
ingly argued in defence of injustice, or took a legal 
advantage at the expense of moral honesty. He once 
endorsed a bond amounting to several thousand dol- 
lars; and the drawer having failed, he was called 
upon to pay it. He knew the bond could be avoided, 
because the holder had advanced the money at usuri- 
ous interest; but he was utterly incapable of throwing 
off the moral obligation in that way, and he paid it.^ 
His generosity was ' as large as his mind, and as unos- 
tentatious as his life.' We shall cite a single example. 
' In passing through Culpepper, on his way to Fau- 
quier, he fell in company with Mr. S., an old fellow- 
officer in the army of the Revolution. In the course 
of conversation, Marshall learned that there was a 
lien upon the estate of his friend to the amount of 
$3000, about due, and he was greatly distressed at 
the prospect of impending ruin. On bidding farewell, 
Marshall privately left a check for the amount, which 
being presented to Mr. S., after his departure, he, 
impelled by a chivalrous independence, mounted, and 
ppur.'ed his horse until he overtook his friend. He 
thanked him for his generosity, but refused to accept it. 

" Southern Literary Messenger, vol. ii., p. 189. 

« Ibid. 

' Howe's Virginia Historical Collections, p. 266. 



250 LIFE OF JOHN MARSHALL. 

Marshall strenuously persisted in its acceptance, and the 
other as strongly persisted in not accepting. Finally, 
it resulted in a compromise, by which Marshall took 
security on the lien, but never called for pay.'^ He 
was a member, for nearly half a century, of the Ami- 
cable Society at Richmond, which was formed to re- 
lieve strangers and wayf\xrers in distress, for whom the 
law made no provision. In short, his unobtrusive acts 
of generosity were innumerable, and flowed from the 
spontaneous goodness of his heart. 

Upon the vexed and disagreeable, but important 
subject of slavery, his opinions were well known. He 
belonged to the Colonization Society, and manifested 
much interest in its objects. Though a slaveholder 
himself, he, nevertheless, regarded the institution as 
an incubus upon the prosperity of a State ; an incubus 
whose effects the Colonization Society might palliate, 
but could not remove. Until the British emancipa- 
tion in the West Indies, he always maintained that 
the abolition of slavery by legal enactment was im- 
practicable ; and that the evil was incurable, except 
by convulsion. After the experiment was actually 
made, he is said to have expressed hope as to the 
future of his beloved Virginia. Possibly, if he had 
lived to see the result in the West Indies, he might 
have anticipated less good from a similar experiment 
elsewhere. To promote the objects of the Colonization 
Society, he was in favor of an application to the seve- 
ral States for permanent aids ; but his chief reliance 
was upon the General Government. ' It is undoubt- 
edly of great importance,' he said, ' to retain the coun- 
tenance and protection of the General Government. 
Some of our cruisers stationed on the coast of Africa 

' Howe's Virginia Historical Collections, p. 266. 



CONCLUSION. 251 

would, at the same time, interrupt the slave-trade — 
a liorrid traffic, detested by all good men — and would 
protect the vessels and commerce of the colon}' from 
pirates who infest those seas. The power of the Gov- 
ernment to afford this aid is not, I believe, contested. 
I regret that its power to grant pecuniary aid is not 
equally free from question. On this subject I have 
always thought, and still think, that the proposition 
made by Mr. King, in the Senate, is the most un- 
exceptionable, and the most effective, that can be 

devised The lands are the property of the 

United States, and have hitherto been disposed of 
by the Government under the idea of absolute owner- 
ship.' ' 

Though taking no part in the political controversies 
of the day, Marshall manifested to the last a warm 
interest in them. To the prevailing politics of his 
native State he was invincibly opposed. Towards the 
latter part of his life, he viewed, with something of 
gloom and despondency, the future prospects of his 
country, from the ascendency of principles which he 
believed would destroy the efficiency and perpetuity 
of the General Government. In a letter to Judge 
Story, two years before his death, he says, ' I have 
just finished reading your great work,^ and wish it 
could be read by every statesman, and every would-be 
statesman in the United States. It is a comprehensive 
and an accurate commentary on our Constitution, 
formed in the spirit of the original text. In the South, 

' Fifteenth Annual Report of the Colonization Society, p. 32. Let- 
ter from Marshall, December 14th, 1831. 

^ Commentaries on the Constitution ; which were dedicated to 
Judge Marshall. 



252 LIFE OF JOHN MARSHALL. 

we are so far gone in political metaphysics, that I fear 
no demonstration can restore us to common sense. 
The word " State Rights," as expounded by the reso- 
lutions of 1798, and the report of 1799, construed by 
our Legislature, has a charm against which all reason- 
ing is vain. Those resolutions, and that report, con- 
stitute the creed of every politician who hopes to rise 
in Virginia; and to question them, or even to adopt 
the construction given by their author, is deemed 
political sacrilege. The solemn and interesting admo- 
nitions of your concluding remarks will not, I fear, 
avail as they ought to avail against this popular 
frenzy. I am grateful for the very flattering terms in 
which you speak of your friend in many parts of this 
valuable work, as well as in the dedication. In despite 
of my vanity, I cannot suppress the fear, that you will 
be supposed by others, as well as myself, to have con- 
sulted a partial friendship farther than your deliberate 
judgment will approve. Others may not contemplate 
this partiality with as much gratification as its ob- 
ject.'' 

In a subsequent letter to Judge Story, he says : — 
* On my return, a day or two past, from an annual 
visit to our mountains, I had the real gratification of 
receiving a number of the New England Magazine for 
August last, containing an Essay, entitled " States- 
men : their Rareness and Importance," forwarded to 
me by yourself, and thank you truly for the real plea- 
sure afibrded by its perusal. The justness and solidity 
of its sentiments, the distinguished individual who is 
selected as an example of the real statesman,^ and the 

' Stor/s Life and Letters, vol. ii., p. 135. July 31st, 1833. 
■ Daniel Webster. 



CONCLUSION. 253 

kind notice taken of an old friend who is under so 
many obligations to you, designate the author as cer- 
tainly as if his name had been affixed to the 
work. 

^ It is in vain to lament, that the portrait which the 
author has drawn of our political and party men is, in 
the general, true. Lament it as we may, much as it 
may wound our vanity or our pride, it is still, in the 

main, true; and will, I fear, so remain In the 

South, political prejudice is too strong to yield to any 
degree of merit ; and the great body of the nation con- 
tains, at least appears to me to contain, too much of 
the same ingredient. To men who think as you and 
I do, the present is gloomy enough ; and the future 
presents no cheering prospect. The struggle now 
maintained in every State in the Union seems to me 
to be of doubtful issue ; but should it terminate con- 
trary to the wishes of those who support the enormous 
pretensions of the Executive, should victory crown the 
exertions of the champions of constitutional law, what 
serious and lasting advantage is to be expected from 
this result ? In the South (things may be less gloomy 
with you) those who support the Executive do not 
support the Government. They sustain the personal 
power of the President, but labor incessantly to impair 
the legitimate powers of the Government. Those who 
oppose the violent and rash measures of the Execu- 
tive (many of them nuUifiers, many of them seceders) 
are generally the bitter enemies of a constitutional 
government. Many of them are the avowed ad- 
vocates of a league ; and those who do not go the 
whole length, go great part of the way. What can 
we hope for in such circumstances? As far as I 
can judge, the Government is weakened, whatever 



254 LIFE OF JOHN MARSHALL. 

party may prevail. Such is the impression I receive 
from the language of those around me.' ^ 

Though strongly opposed to the general policy of 
Jackson's Administration, and the principles upon 
which it was conducted, the Chief Justice warmly 
approved his proclamation and message against nulli- 
fication. Secession and nullification he regarded as 
political heresies of the most dangerous character; as 
theories utterly subversive of all stability in our Gov- 
ernment, and at war with its fundamental principles. 
Speaking of a dinner at the President's, about the time 
of the debate on the Force bill, Judge Story says, ' I 
forgot to say, that, notwithstanding I am " the most 
dangerous man in America,"^ the President specially 
invited me to drink a glass of wine with him. But, 
what is more remarkable, since his last proclamation 
and message, the Chief Justice and myself have be- 
come his warmest supporters, and shall continue so 
just as long as he maintains the principles contained 
in them. Who would have dreamed of such an occur- 



Marshall was fond of books, which, in his intervals 
of leisure, he read ' for delight.' His familiarity with 
general literature was extensive. The great masters 
of English letters were his favorite companions. He 
read novels with intense interest, and would spend the 
night over their alluring pages. He had formed a 
very high estimate of female genius, and the produc- 
tions of female authors he read with an interest in 



Story's Life and Letters, vol. ii., p. 172. October 6th, 1834. 

* So styled by General Jackson. 

• Story's Life and Letters, vol. ii., p. 117. January 27tb, 1833. 



CONCLUSION. 255 

some sort proportioned to his admiration of their sex. 
Acknowledging the receipt of a discourse by Judge 
Story, he says, ' I have read it with real pleasure, and 
am particularly gratified with your eulogy on the 
ladies. It is matter of great satisfaction to me to find 
another judge who, though not as old as myself, thinks 
justly of the fair sex, and commits his sentiments to 
print. I was a little mortified, however, to find that 
you had not admitted the name of Miss Austin into 
your list of favorites. I had just finished reading her 
novels when I received your discourse, and was so 
much pleased with them, that I looked in it for her 
name, and was rather disappointed at not finding it. 
Her flights are not lofty, she does not soar on eagles' 
wings, but she is pleasing, interesting, equable, and 
yet amusing, I count on your making some apology 
for this omission.' ^ 

The Chief Justice had imbibed, in his youth, a love 
of poetry ; and the ^ sweetly uttered wisdom' of song 
he found a solace and delight in his age. No doubt 
these studies contributed very much to preserve his 
intellect in that vigor and freshness which it exhibited 
down to the very close of his life. His mind was not 
suffered to grow rigid by dwelling only on profes- 
sional topics ; but was variously exercised, which is 
' healthful and sovereign for the understanding.' 

The constitution of the Chief Justice was robust, 
and his health good. From youth to age, he suffered 
but little from sickness. In his latter years, however, 
he was afflicted with that most excruciating malady, 
the stone. In October, 1831, he visited Philadel- 
phia, and submitted to an operation by Dr. Physick, 

• Story's Life and Letters, vol. i., p. 506. November 26th, 1826. 



256 LIFE OF Jv/HN MARSHALL. 

which gave him relief. 'This case,' says Dr. Ran- 
dolph, ^ was attended with singular interest, in con- 
sequence of the exalted position of the patient, his ad- 
vanced age, and the circumstance of there being 
upwards of one thousand calculi taken from his blad- 
der It will be readily admitted that, in conse- 
quence of Judge Marshall's very advanced age, the 
hazard attending the operation, however skilfully per- 
formed, was considerably increased. I consider it but 
an act of justice, due to the memory of that good and 
great man, to state that, in my opinion, his recovery 
was, in a great degree, owing to his extraordinary 
self-possession, and to the calm and philosophical 
views which he took of his case, and the various cir- 
cumstances attending it. It fell to my lot to make 
the necessary preparations. In the discharge of this 
duty, I visited him on the morning of the day fixed 
on for the operation, two hours previously to that at 
which it was to be performed. Upon entering his 
room, I found him engaged in eating his breakfast. 
He received me with a pleasant smile upon his coun- 
tenance, and said, " Well, Doctor, you find me taking 
breakfast, and I assure you I have had a good one. I 
thought it very probable that this might be my last 
chance, and therefore I was determined to enjoy it, 
and eat heartily." I expressed the great pleasure 
which I felt at seeing him so cheerful, and said that I 
hoped all would soon be happily over. He replied to 
this, that he did not feel the least anxiety or uneasi- 
ness respecting the operation or its result. He said 
that he had not the slightest desire to live, laboring 
ander the sufferings to which he was then subjected ; 
that he was perfectly ready to take all the chances of 
an operation, and he knew there were many against 
him ; and that, if he could be relieved by it, he was 



CONCLUSION. 257 

willing to live out his appointed time, but if not, 
would rather die, than hold existence accompanied 
with the pain and misery which he then endured. 
After he had finished his breakfiist, I administered to 
him some medicine : he then inquired at what hour 
the operation would be performed. I mentioned the 
hour of eleven. He said, " Very well ; do you wish 
me now for any other purpose, or may I lie down and 
go to sleep?" I was a good deal surprised at this 
question, but told him that if he could sleep it would 
be very desirable. He immediately placed himself 
upon the bed and fell into a profound sleep, and con- 
tinued so until I was obliged to rouse him in order to 
undergo the operation. He exhibited the same forti- 
tude, scarcely uttering a murmur throughout the 
whole procedure, which, from the peculiar nature of 
his complaint, was necessarily tedious." 

His situation had been considered dangerous, and, 
throughout the country, caused much anxiety : his 
happy recovery occasioned corresponding joy. ' Pray 
tell the Chief Justice,' wrote Judge Story to his friend 
Peters, ' how deeply every one here has been interested 
in his situation. He is beloved and reverenced here 
oeyond all measure, though not beyond his merits. 
Next to Washington, he stands the idol of all good 
men. And who so well deserves it? I look upon his 
judicial life as good now for at least six years 
longer ?' * 

Though recovering himself, he received, soon after, 

' Memoir of Dr. P. S. Physick, by J. Randolph, M. D., p. 96, et 
seq. 

' Story's Life and Letters, vol. ii., p. 70. Letter to Richard Peters, 
October 29th, 1831. 
17 



258 LIFE OF JOHN MARSHALL. 

a severe blow in the death of his wife, to whom he was 
ardently attached. She had suffered much from ill- 
health, and the tender and assiduous attention he 
paid to her, says Bishop Meade, was the most interest- 
ing and striking feature in his domestic character. 
* Mrs. Marshall was nervous in the extreme. The least 
noise was sometimes agony to her whole frame, and 
his perpetual endeavor was to keep the house, and 
yard, and outhouses, as free as possible from the 
slightest cause of distressing her; walking himself, at 
times, about the house and yard without shoes. On 
one occasion, when she was in her most distressing 
state, the town authorities of Richmond manifested 
their great respect for him, and sympathy for her, by 
having either the town-clock or town-bell muffled.'^ 

Marshall first met his future wife at York, while on 
a visit to his fatlier. Colonel Marshall, who was the 
commanding officer at that place. She was but fourteen 
years of age at the time, and it is stated to have been 
a case of love at first sight. It is also said, that he 
endeared himself to her flimily, ^ notwithstanding his 
slouched hat, and negligent and awkward dress, by his 
amiable manners, fine talents, and especially his love 
for poetry, which he read to them with deep pathos.' 
In proof of the ardor of his character, and the tender- 
ness of his attachment to his intended wife, his sister- 
in-law, Mrs. Carrington, remarks, that he often said to 
her, ' that he looked with astonishment on the present 
race of lovers,' so totally unlike what he had been him- 
self On his marriage, after paying the minister his 
fee, his sole remaining fortune was a guinea.^ 

' Old Churches and Families of Virginia, vol. ii., p 222. 
• Ibid., vol. i., p. 99, note. 



CONCLUSION. 259 

Mrs. Marshall died on the 25th of December, 1831. 
Her loss weighed heavily on his spirits. ' On going 
into the Chief Justice's room this morning,' says his 
friend, and brother judge, 'I found him in tears. He 
had just finished writing out for me some lines of 
General Burgoyne, of which he spoke to rae last even- 
ing as eminently beautiful and affecting. I asked him 
to change the purpose, and address them to you, which 
he instantly did, and you will find them accompanying 
this. I saw at once that he had been shedding tears 
over the memory of his own wife ; and he has said 
to me several times during the term, that the moment 
he relaxes from business he feels exceedingly de- 
pressed, and rarely goes through a night without 
weeping over his departed wife. She must have 
been a very extraordinary woman, so to have at^ 
tached him, and I think he is the most extraordinary 
man I ever saw, for the depth and tenderness of his 
feelings.' ^ 

The following affecting tribute to her memory was 
written by himself, December 25th, 1832 : — 

*This day of joy and festivity to the whole Chris- 
tian world is, to my sad heart, the anniversary of the 
keenest affliction which humanity can sustain. While 
all around is gladness, my mind dwells on the silent 
tomb, and cherishes the remembrance of the beloved 
object which it contains. 

' On the 25th of December, 1831, it was the will 
of Heaven to take to itself the companion who had 

' Story's Life and Letters, vol. ii., p. 86. Letter to Mrs. Story, 
March 4tli, 1832. 



260 LIFE OF JOHN MARSHALL. 

sweetened the choicest part of my life, had rendered 
toil a pleasure, had partaken of all my feelings, and 
was enthroned in the inmost recess of my heart. 
Never can I cease to feel the loss, and to deplore it. 
Grief for her is too sacred ever to be profaned on this 
day, which shall be, during my existence, marked by 
a recollection of her virtues. 

'On the 3d of January, 1783, I was united by the 
holiest bonds to the woman I adored. From the mo- 
ment of our union to that of our separation, I never 
ceased to thank Heaven for this, its best gift. Not a 
moment passed in which I did not consider her as a 
blessing from which the chief happiness of my life was 
derived. This never-dying sentiment, originating in 
love, was cherished by a long and close observation 
of as amiable and estimable qualities as ever adorned 
the female bosom. To a person which, in youth, was 
very attractive, to manners uncommonly pleasing, 
she jidded a fine understanding, and the sweetest 
temper which can accompany a just and modest 
sense of what was due to herself. She was educated 
with a profound reverence for religion, which she pre- 
served to her last moments. This sentiment, among 
her earliest and deepest impressions, gave a coloring 
to her whole life. Hers was the religion taught by 
the Saviour of man. She was a firm believer in the 
faith inculcated by the Church [Episcopal] in which 
she was bred. 

' I have lost her, and with her have lost the solace 
of my life ! Yet she remains still the companion of 
my retired hours, still occupies my inmost bosom. 
When alone, and unemployed, my mind still recurs 
to her. More than a thousand times, since the 25th 
of December, 1831, have I repeated to myself the 



CONCLUSION. 261 

beautiful lines written by General Burgoyne, under 
a similar affliction, substituting "Mary" for "Anna:" 

* " Encompassed in an angel's frame, 

An angel's virtues lay; 
Too soon did Heaven assert its claim, 

And take its own away ! 
My Mary's worth, My Mary's charms, 

Can never more return ! 
What now shall fill these widowed arms? 

Ah me ! My Mary's urn ! 
Ah me! Ah me! My Mary's urn!"" 

At the ensuing term of the Supreme Court (Janu- 
ary, 1833), the Chief Justice was at his post, and, 
though he had now attained the seventy-eighth year 
of his age, his health seemed fully re-established. 'The 
Court opened on Monday last,' says Judge Story, 'and 
all the Judges were present, except Judge Baldwin. 
They were in good health, and the Chief Justice espe- 
cially looked more vigorous than usual. He seemed 
to revive, and enjoy anew his green old age. He 
brought with him, and presented to each of us, a copy 
of the new edition of his Life of Washington, in- 
scribing in the fly-page of mine a very kind remark. . . 
Having some leisure on our hands, the Chief Justice 
and myself have devoted some of it to attendance upon 
the theatre, to hear Miss Fanny Kemble, who has 
been in the city the past week. We attended on Mon- 
day night, and, on the Chief Justice's entrance into 
the box, he was cheered in a marked manner. He 
behaved as he always does, with extreme modesty, 
and seemed not to know that the compliment was de- 
signed for him. We have seen Miss Kemble as Julia., 

' Old Churches and Families of Virginia, vol. ii., p. 223, note. 



262 LIFE OF JOHN MARSHALL. 

in the Hunchback, and as Mrs. Haller, in the Stran- 
ger. ... I have never seen any female acting at all 
comparable to hers. She is so graceful, that you for- 
get that she is not very handsome. In Mrs. Haller, 
she threw the whole audience into tears. The Chief 
Justice shed them in common with younger eyes.' ' 

The celebrity of Marshall, the reverence and aflfec- 
tion with which he was regarded by his own country- 
men, naturally made him an object of interest to stran- 
gers visiting the United States. And he inspired in 
them, as in every one who knew him, and became 
acquainted with his character, sentiments of venera- 
tion and esteem. Miss Martineau was in Washington 
the winter preceding his death, and she has thus re- 
corded her impressions of his appearance and conver- 
sation : — 

* With Judge Story,' she says, ' sometimes came the 
man to whom he looked up with feelings little short 
of adoration ; the aged Chief-Justice Marshall. There 
was almost too much mutual respect in our first meet- 
ing; we knew something of his individual merits and 
services; and he maintained through life, and carried 
to his grave, a reverence for woman as rare in its kind 
as in its degree. It had all the theoretical fervour and 
magnificence of Uncle Toby's, with the advantage of 
being grounded upon an extensive knowledge of the 
sex. He was the father and the grandfather of woman; 
and out of this experience he brought, not only the 
love and pity which their offices and position com- 
mand, and the awe of purity which they excite in the 

' Story's Life and Letters, vol. ii., p. 116. Letter to Mrs. Story, 
January 2d, 1833. 



CONCLUSION. 263 

minds of the pure, but a steady conviction of their in- 
tellectual equality with men ; and, with this, a deep 
sense of their social injuries. Throughout life he so 
invariably sustained their cause, that no indulgent 
libertine dared to flatter and humor, no sceptic, secure 
in the possession of power, dared to scoff at the claims 
of woman in the presence of Marshall, who, made 
clear-sighted by his purity, knew the sex far better 
than either. 

' How delighted we were to see Judge Story bring 
in the tall, majestic, bright-eyed old man ! — old by 
chronology, by the lines on his composed face, and by 
his services to the republic ; but so dignified, so fresh, 
so present to the time, that no feeling of compassion- 
ate consideration for age dared to mix with the con- 
templation of him. 

' The first evening, he asked me much about Eng- 
lish politics, and especially whether the people were 
not fast ripening for the abolition of our religious esta- 
blishment — an institution which, after a long study 
of it, he considered so monstrous in principle, and so 
injurious to true religion in practice, that he could not 
imagine that it could be upheld for anything but politi- 
cal purposes. There was no prejudice here, on account 
of American modes being different ; for he observed 
that the clergy were there, as elsewhere, far from being 
in the van of society, and lamented the existence of 
much fanaticism in the United States : but he saw the 
evils of an establishment the more clearly, not the 
less, from being aware of the faults in the administra- 
tion of religion at home. The most animated moment 
of our conversation was when I told him I was going 
to visit Mr. Madison, on leaving Washington. He in- 
stantly sat upright in his chair, and with beaming 
eyes began to praise Mr. Madison. Madison received 



264 LIFE OF JOHN MARSHALL. 

the mention of Marshall's name in just the same man- 
ner : yet these men were strongly opposed in politics, 
and their magnanimous appreciation of each other un- 
derwent no slight or brief trial.' ' 

In the spring of this year (1835), and after the re- 
turn of the Chief Justice to Virginia, another English 
traveller spent a week at Richmond, enjoying the hos- 
pitality of its inhabitants; and to bis pen we are in- 
debted for the following sketch of the Chief Justice : 

^ Judge Marshall, who is Chief Justice of the Su. 
preme Court, and, in fact. Lord Chancellor of the 
United States, is one of the most remarkable and dis- 
tinguished men that has adorned the Legislature of 
either shore of the Atlantic. He began life as a sol- 
dier; and, during the American war, served in the 
militia, where he rose to the rank of General :^ after 
which he came to the Bar, and passed through all its 
gradations to his present high position, which is, in 
my opinion, the proudest that an American can enjoy, 
not excepting that of President; inasmuch as it is 
less subject arbiirio popularis aurce ; and as the Court 
over which he presides can affirm and decide what is 
and what is not the Constitution of the United States. 

' The Judge is a tall, venerable man, about eighty 
years of age, his hair tied in a cue, according to olden 
custom, and with a countenance indicating that sim- 
plicity of mind and benignity which so eminently dis- 
tinguish his character. As a judge he has no rival, 
his knowledge being profound, his judgment clear and 

' Martineau's Western Travel, vol. i., p. 247, English ed. 
' This is erroneous. A/fer the war, and not during the war, he 
served in the militia, and was appointed a militia general. 



CONCLUSION. 265 

just, and his quickness in apprehending either the fal- 
lacy or truth of an argument as surprising. I had the 
pleasure of several long conversations with him, and 
was struck with admiration at the extraordinary union 
of modesty and power, gentleness and force, which his 
mind displays. What he knows he communicates 
without reserve; he speaks with a clearness of expres- 
sion, and in a tone of simple truth, which compel con- 
viction ; and on all subjects on which his knowledge 
is not certain, or which admit of doubt or argument, 
he delivers his opinion witli a candid diffidence, and 
with a deference for that of others, amounting almost 
to timidity : still, it is a timidity which would disarm 
the most violent opponent, and win respect and cre- 
dence from any auditor. I remember having often 
observed a similar characteristic attributed to the im- 
mortal Newton. The simplicity of his character is 
not more singular than that of his life ; pride, ostenta- 
tion, and hypocrisy are " Greek to him ;" and he 
really lives up to the letter and spirit of republican- 
ism, while he maintains all the dignity due to his age 
and office. 

' His house is small, and more humble in appear- 
ance than those of the average of successful lawyers 
or merchants. I called three times upon him ; there 
is no bell to the door : once I turned the handle of it, 
and walked in unannounced; on the other two occa- 
sions he had seen me coming, and had lifted the latch 
and received me at the door, although he was at the 
time suffering from some severe contusions received in 
the stage while travelling on that road from Frede- 
ricksburgh to Richmond, which I have before de- 
scribed. I verily believe there is not a particle of 
vanity in his composition, unless it be of that venial 
and hospitable nature which induces him to pride him- 



266 LIFE OF JOHN MARSHALL. 

self on giving to his friends the best glass of Madeira 
in Virginia. In short, blending, as he does, the sim- 
plicity of a child and the plainness of a republican 
with the learning and ability of a lawyer, the venera- 
ble dignity of his appearance would not suffer in com- 
parison with that of the most respected and distin- 
guished-looking peer in the British House of Lords.' * 

This absence of vanity, this childlike simplicity, 
this unpretending manner, that distinguished Mar- 
shall, and which every one remarked, often induced a 
feeling of disappointment on a first introduction to 
him. He used no tricks ' to maintain the credit of 
his sufficiency ;" and never talked to display his know- 
ledge or ability, or 'to get opinion,' as Bacon expresses 
it. There was an utter unconsciousness of self in his 
manner; all was simple, natural, and unaffected. He 
presumed nothing upon his age or station, and his 
ordinary conversation, though agreeable, sensible, and 
suitable to the occasion, did not betoken the depth of 
his mind. It was only in the company of his intimate 
friends, and when the conversation was directed to 
some subject that elicited discussion, that the powers 
of his mind were displayed. The following anecdote 
may be cited as an example : — 

* Mr. Dexter,' says Judge Story, ' was once in com- 
pany with Fisher Ames and Chief Justice Marshall. 
The latter commenced a conversation, or rather an 
opinion (for he was almost solus in the dialogue), 
which lasted some three hours. On breaking up, the 

' Travels in North America, by the Honorable Charles Augustus 
Murray, vol. i., p. 158. Murray, by the bye, was a grandson of 
Lord Dunmore 



CONCLUSION. 267 

two former commenced, on their way homeward, 
praising the depth and learning of their noble host. 
Said Ames, after a short talk, " to confess the truth, 
Dexter, I have not understood a word of his argument 
for half an hour." "And I," good-humoredly rejoined 
Dexter, *' have been out of my depth for an hour and 
a half."'^ 

The Chief Justice fearing the effects of age upon 
his mind, and anxious that, ' in life's last scenes,' he 
might not exhibit another instance of the ' follies of 
the wise,' had charged his confidential friends to let 
him know whenever they perceived the slightest abate- 
ment in his intellectual vigor, and he would at once 
retire from the Bench. But they never had occasion 
to perform that delicate office. His intellect remained 
unclouded and undimmed to the last moment. At the 
session of the Supreme Court, however, in the winter 
of 1835, it was apparent that his health was rapidly 
declining. His complaints were very much aggra- 
vated by the injuries received while travelling in the 
stage between Fredericksburgh and Richmond, on his 
return home at the close of the term. He suffered 
great pain through the spring ; but, early in June, ex- 
perienced a delusive interval of convalescence. It did 
not last long, and, at the earnest solicitation of friends, 
he revisited Philadelphia to seek that relief which the 
medical skill of that city had formerly afforded him. 
He was accompanied by three of his sons,^ and through- 

' Story's Life and Letters, vol. ii., p. 404. 

' His eldest son, Mr. Thomas Marshall, who was ' highly esteemed 
for his talents, his many virtues, and his exemplary and useful life,' 
was killed at Baltimore by the fall of a chimney, while on his way tc 
attend the death-bed of his father. He died June 28th. This melan- 
choly calamity was considerately concealed from the dying parent. 



268 LIFE OF JOHN MARSHALL. 

out his illness had every consolation from filial atten 
tion, and from the kindness and attention of his nume- 
rous friends at Philadelphia, who manifested the deepest 
interest in his situation, and did all in their power to 
alleviate it. But it was evident, from the moment of 
his arrival in the city, that the sands of his life had 
nearly run out. The cause of his death was a very 
diseased condition of the liver, which was enormously 
enlarged, and contained several tuberculous abscesses 
of great size ; its pressure upon the stomach had the 
effect of dislodging this organ from its natural situa- 
tion, and compressing it in such a manner, that, for 
some time previous to his death, it would not retain 
the smallest quantity of nutriment.^ He was conscious 
of his approaching end, and viewed it with perfect 
composure. Two days before his death, and in full 
view of it, with a modesty characteristic of himself, he 
wrote the following inscription for his monumental 
tablet : — ' John Marshall, son of Thomas and Mary 
Marshall, was born on the 24th of September, 1755, 
intermarried with Mary Willis Ambler the 3d of 

January, 1783, departed this life the day of , 

18—.' 

He expired without a struggle, on Monday, the 6th 
of July, 1835, about six o'clock in the evening. The 
news of his death elicited everywhere manifestations 
of sorrow and respect. The citizens of Philadelphia 
assembled in town meeting to express their senti- 
ments on the occasion. The venerable Bishop White, 
then in the 88th year of his age, presided. Suitable 
resolutions were adopted, and the whole proceedings 
evinced the respect and reverence with which his 
character was regarded. 

• Randolph's Memoir of Dr. Physick, p. 101. 



CONCLUSION. 269 

His remains were conveyed to Richmond, accompa- 
nied by a committee of the Philadelphia Bar. On 
their arrival at that place they were met by an im- 
posing procession composed of the military, the Ma- 
sonic brethren, the civil authorities, and citizens, and 
escorted to his residence, where the funeral service 
was performed by the Right Reverend Bishop Moore, 
in a most fervent and feeling manner. He was buried 
near the ashes of his wife, in what was called the 
New Burying - ground. His statue, representing 
Justice, occupies one of the six pedestals that sur- 
round the main column of the Washington Monu- 
ment erected in the Capitol square at Richmond. 
Certainly nothing could be more appropriate. 

Judge Marshall was a sincere friend to religion, and 
a constant attendant upon its ministrations. Brought 
up in the Episcopal Church, he adhered to it through 
life, though not until a short time before his death a 
believer in its fundamental doctrines. 

* I often visited,' says the Rev, Mr. Norwood, * Mrs. 
General Harvey during her last sickness. From her 
I received this statement. She was much with her 
father [Judge Marshall] during the last months of his 
life, and told me that the reason why he never com- 
muned was, that he was a Unitarian in opinion, 
though he never joined their society. He told her 
that he believed in the truth of the Christian revela- 
tion, but not in the divinity of Christ ; therefore he 
could not commune in the Episcopal Church. But, 
during the last months of his life, he read Keith 
on Prophecy, where our Saviour' s divinity is inci- 
dentally treated, and was convinced by his work, and 
the fuller investigation to which it led, of the supreme 



270 LIFE OF JOHN MARSHALL. 

divinity of the Saviour, He determined to apply for 
admission to the communion of our Church — objected 
to communion in private, because he thought it his 
duty to make a public confession of the Saviour; and, 
while waiting for improved health to enable him to go 
to the Church for that purpose, he grew worse, and 
died, without ever communing. Mrs. Harvey was a 
lady of the strictest probity, the most humble piety, 
and of a clear, discriminating mind ; and her state- 
ment, the substance of which I give you accurately 
(having reduced it to writing), may be entirely re- 
lied on. 

I remember to have heard Bishop Moore repeat- 
edly express his surprise (when speaking of Judge 
Marshall), that, though he was so punctual in his 

attendance at church, and reproved Mr. , and Mr. 

, and Mr. , when they were absent, and knelt 

during the prayers and responded fervently, yet he 
never communed. The reason was that he gave to his 
daughter, Mrs. Harvey. She said he died an humble, 
penitent believer in Christ, according to the orthodox 
creed of the Church. . . . 

' P. S. — Another fact, illustrating the lasting influ- 
ence of maternal instruction, was mentioned by Mrs. 
Harvey. Her father told her that he never went to 
bed without concluding his prayers with those which 
his mother taught him when a child, viz., the Lord's 
Prayer, and the prayer beginning, " Now I lay me 
down to sleep." ' * 

I can never forget,' says Bishop Meade, ' how he 
would prostrate his tall form before the rude low 

' Old Churches aud Families of Virginia, vol. ii., p. 223, note. 
Letter from Rev. William Norwood to Bishop Meade. 



CONCLUSION. 271 

benches without backs, at Cool Spring Meeting-house, 
in the midst of his children, and grandchildren, and 
his old neighbors. In Richmond he always set an ex- 
ample to the gentlemen of the same conformity, though 
many of them did not follow it. At the building of 
the Monumental Church he was much incommoded by 
the narrowness of the pews, which partook too much, 
of the modern fashion. Not finding room for his whole 
body within the pew, he used to take his seat nearest 
the door of his pew, and throwing it open, let his legs 
stretch a little into the aisle.' * 

He not only conformed to the ceremonies of religion, 
but his whole life evinced virtuous principles and affec- 
tions. * He had no frays in his boyhood. He had no 
quarrels or outbreakings in manhood. He was the 
composer of strifes. He spoke ill of no man. He 
meddled not with their affairs. He viewed their worst 
deeds through the medium of charity. He had eight 
sisters and six brothers, with all of whom, from youth 
to age, his intercourse was marked by the utmost kind- 
ness and affection ; and although his eminent talents, 
high public character, and acknowledged usefulness, 
could not fail to be a subject of pride and admiration 
to all of them, there is no one of his numerous rela- 
tions, who has had the happiness of a personal associa- 
tion with him, in whom his purity, simplicity, and 
affectionate benevolence, did not produce a deeper and 
more cherished impression, than all the achievements 
of his powerful intellect.' ' In private life he was up- 
right, and scrupulously just in all his transactions. His 
friendships were ardent, sincere, and constant — his 
charity and benevolence unbounded. He was fond 

■ Old Churches and Families of Virgiuia, vol. ii., p. 221, note. 



272 LIFE OF JOHN MARSHALL. 

of society, and, in the social circle, cheerful and unas- 
suming. He participated freely in conversation, but, 
from modesty, rather followed than led. Magnani- 
mous and forgiving, he never bore malice, of which 
illustrious instances might be given. A republican 
from feeling and judgment, he loved equality, abhorred 
all distinctions founded upon rank instead of merit, 
and had no preference for the rich over the poor. Re- 
ligious from sentiment and reflection, he was a Chris- 
tian, believed in the Gospel, and practised its tenets.' * 



' The testimony of a kinsman and of a friend. Vide, Biuuej'a 
Eulogy on John Marshall, p. 68. 



INDEX. 



Adams, John, 77, 106, 117, 120, 122, 125, 129, 130, 159. 

Adams, Col., 132. 

Ambler, Jacqueline, 44, 238. 

Ambler, Mary Willis, 44, 238, 268. 

Ames, Fisher, 73, 112, 266, 267. 

Arnold, Benedict, 22. 

Baker, John, 31, 148. 

Ball, Col., 19. 

Barbour, P. P., 224. 

Barlow, Joel, 201. 

Barthelimie, Wm. Abbe, 211. 

Beaumarchais, M. , 87. 

Bellamy, M., 80-104. 

Binney, Horace, 134, 136, 194. 

Blair, Archibald, 109. 

Blair, J. D., 240. 

Blennerhassett, Hermann, 147, 148, 154. 

Bollman, Eric, 144-147. 

Botts, Benjamin, 148. 

Bradford, William, 73. 

Brown v. Maryland, 184. 

Buchanan, J., 240. 

Burgoyne, John, 259, 261. 

Burr, Aaron, 20, 127, 136, 141-149, 154, 155. 

Butler, Benjamin F., 195. 

Butler, Rev. Mr., 182. 

Cabot, George, 73, 103. 

Call, Daniel, 239. 

Campbell, Alexander, 30, 32, 33. 

273 



274 



INDEX. 



Campbell, Rev. Mr., 5. 
Carr, Dabney, 179. 
Carrington, Mrs. Edward, 258. 
Chesterfield, Lord, 171. 
Chevallie, John A., 87. 
Chisholm v. Georgia, 66. 
Clay, Henry, 195. 
Clinton, Sir Henry, 21. 
Clymer, George, 44, 
Cohens v. Virginia, 175. 
Cornwallis, Lord, 22. 
Craig V. Missouri, 186. 
Cushing, William, 130. 

Dallas, Alexander J., 156. 
Dana, Francis, 76. 

Dartmouth College, The Case of, 166. 
Dexter, Samuel, 73, 125, 135, 266, 267. 
Dunmore, Lord, 9, 13, 14, 15. 
Duponceau, Peter S., 136. 
Dutrimond, M., 91. 

Eldon, Lord, 135. 

Eramett, Thomas Addis, 136, 156, 173. 
"Ex parte Swartwout and Bollman, 149, 150. 

Fisher, George, 239. 
Fletcher v. Peck, 162. 
Fordyce, Capt., 15. 
Fox, Charles James, 134. 
Fulton, Robert, 178. 

Gallatin, Albert, 119. 
Gerry, Elbridge, 77-1 )4 
Gibbon, Edward, 211. 
Gibbons v. Ogden, 139, 178. 
Giles, William B., 154, 223. 
Gilmer, Francis W., 32, 
Grayson, William, 50, 69. 
Griffin, Judge, 30. 



INDEX. 275 

Hamilton, Alexander, 20, 33, 73, 127, 142. 

Harper, Robert G., 136, 137. 

Harvey, Mrs., 269, 270. 

Hautville, M., 84-104. 

Hay, George, 148. 

Henry, Patrick, 30-32, 50, 52, 54, 59, 62, 68, 109, 110. 

Hoffman, Josiah Ogden, 136, 156. 

Holmes, 166. 

Hopkinson, Francis, 136, 166, 172. 

Hottinguer, M., 78-104. 

Howe, Sir William, 21. 

Hume, David, 132, 211, 247. 

Huntington, The Countess, 31, 32. 

Ingersoll, Jared, 136. 
Innes, James, 31, 50. 
Iredell, Judge, 30, 31, 32. 

Jackson, Andrew, 254. 

Jackson, William, 209, 210, 212. 

Jay, John, 30, 130, 219. 

Jefferson, Thomas, 54, 103, 104, 127, 128, 136, 142, 159, 160, 

201, 218, 219, 230. 
Johnson, Capt., 18. 
Johnson v. MTntosh, 176. 
Johnson, Dr. Samuel, 113, 132. 
Jones, Hugh, 24. 
Jones, Walter, 172. 

Keith, Mary, 3, 4. 
Kemble, Miss Fanny, 261. 
Kent, James, 136. 
King, Rufus, 73, 126,251 

Lee, Charles, 122, 124, 148. 

Lee, Henry, 21, 112, 116. 

Lee, Richard Henry, 69. 

Leigh, B. Walkins, 136, 224, 235. 

Leslie, General, 21, 22. 

Lewis, William, 33. 



276 INDEX. 

Liancourt, Duke de, 38, 39, 40. 
Livingston, Brockholst, 103. 
Livingston, Robt. R. , 178. 

Madison, James, 50, 68, 103, 159, 201, 222, 223, 263. 

Madison, Bishop, 23. 

Mansfield, Lord, 135. 

Marbury v. Madison, 159. 

Markham, Elizabeth, 1. 

Marshall, John, Sr., 1. 

Marshall, Mrs. J., 44, 238, 258. 

Marshall, Thomas, 1-4, 6, 8, 10, 12, 15, 258, 267. 

Martineau, Miss, 195, 262. 

Martin, Luther, 136, 148, 172. 

Mason, George, 46, 50, 65, 68. 

Mayo, 121. 

Mazzei, Philip, 218. 

McCulloch V. Maryland, 171. 

Meade, Bishop, 243, 258, 270. 

M'Henry, J., 122, 123, 124, 125, 128. 

Monroe, James, 1, 6, 55, 74, 222, 223. 

Moore, Bishop, 269, 270. 

Mountflorenoe, 78. 

M' Rae, Alexander, 148. 

Napoleon, 143. 
Nereide, The, 156, 158. 
Newton, Isaac, 265. 
Nicholas, 137. 
Nicholas, George, 50. 
Nicholas, William, 50. 
Norwood, William, 269. 

Oakly, Chief Justice, 136, 179. 
Ogden, David B., 136. 
Ogden V. Saunders, 140. 
Osborn v. U. S. Bank, 182. 

Parker, Joel, 136. 
Patterson, William, 130. 



INDEX. 277 

Peters, Richard, 256. 

Phillips, 53, 54. 

Physick, Dr. P. S., 255. 

Pickering, Timothy, 101, 122, 124, 125. 

Pinckney, C. C, 76, 78-104. 

Pinkney, WilUam, 136, 137, 156, 157, 172. 

Pinto, Manuel, 156, 158. 

Porterfield, Charles, 18. 

Porterfield, Robert, 18. 

Randolph, Edmund, 46, 50, 53, 54, 148, 
Randolph, J., 13, 224, 229, 232. 
Randolph, Dr. J., 256. 
Rawle, William, 136. 
Robbins, Jonathan, 117-120. 
Ronald, Andrew, 31. 
Rose V. Himely, 156. 
Rutledge, John, 44. 

Scott, John, see Eldon. 

Sergeant, John, 136, 189. 

Sedgwick, Theo., 73. 

Short, William, 205. 

Slaughter, Philip, 18. 

Starke, 31. 

Steuben, Baron, 21. 

Stevens, Edward, 12. 

Stoddert, Benjamin, 122, 123. 

Story, Joseph, 2, 20, 46, 131, 132, 134, 137, 182, 193, 194, 

251, 252, 255, 257, 261, 262, 263. 
Swartwout, Samuel, 144, 145, 146. 

Taliafero, Lawrence, 12. 

Talleyrand, M., 77-104. 

Taylor, 122. 

Tazewell, Littleton W., 224. 

The Cherokee Nation v. Georgia, 187. 

Thompson, Rev. Mr., 6. 

Tilghman, E., 136. 



278 INDEX. 

Van Buren, M., 218. 

Wadsworth, Gen. J., 73. 

Ware v. Hylton, 30. 

Washington, Bushrod, 106-108, 168, 197-206. 

Washington, George, 1, 4, 16-18, 70, 71, 74, 75, 107-112, 

115-117, 122, 133, 197, 209, 219, 238, 257. 
Wayne, Anthony, 21. 

Wayne, Caleb P., 197, 203, 204, 205, 208, 214. 
Webster, D., 132, 135, 166-169, 172, 179, 180, 195. 
Weems, Mason L., 202. 
Wells, 136. 
White, Bishop, 268. 
Wickham, John, 31, 137, 148. 
Wilkinson, Gen. J., 144, 146. 
Willis, Capt., 77. 
Wilson, James, 106. 

Wirt, William, 27, 29, 32, 137, 148, 166, 169, 172, 179, 189. 
Wolcott, Oliver, 103, 112, 113, 122, 123, 124, 125, 128. 
Woodford, Colonel, 14. 
Worcester, Samuel A., 130, 191. 
Wythe, George, 23, 72. 



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LIBRARY OF CONGRESS 



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